with whom RABINOWITZ, Justice, joins dissenting.
I dissent because, in my view, there is a genuine dispute about why William Witmer was riding in George Kellen’s automobile at the time of the accident.
At his deposition, Witmer testified that he was riding in the vehicle more for social purposes than for business purposes. In his affidavit, Witmer stated that he had already decided to take a break from work and was preparing to go for a walk when he heard that Kellen would be leaving shortly to jump start a co-employee’s car. He explained in his affidavit that he went with Kellen because “he was leaving at the right time as I was preparing to leave and it was convenient for me to ride with him, rather than take a walk myself or ask around for a ride from someone else.” Witmer further affied that when he accepted the ride with Kellen, and while he rode in Kellen’s car before the accident, he did not consider himself at work or performing any work for the company. Witmer did not file a workers’ compensation claim after the injury.
Witmer’s testimony is equivocal. He did not squarely deny that his presence in the vehicle may have been motivated in at least small part by some purpose of advancing the business. A jury might choose to reject Witmer’s testimony altogether and could find that he actually accompanied Kellen at least in part for reasons directly or indirectly related to his course of employment. Likewise, a jury might decide that Witmer harbored a joint purpose in accompanying Kellen and was not motivated exclusively by personal or social reasons. A jury might conclude he also intended to check on the status of the Wit-Rey employee whose car Kellen intended to jump start, or intended to observe Kellen in a work-related activity, or even intended to associate with his employees to build morale. The jury’s conclusions might well turn on Witmer’s credibility.
Nonetheless, given Witmer’s deposition testimony and affidavit, reasonable jurors would not be compelled to find that his injuries arose out of his employment or were suffered in the course of it. Witmer’s explanation is not so improbable as to be incredible. In my view, Witmer’s testimony creates a genuine issue of material fact which cannot be resolved on summary judgment.
It is of no consequence that, for purposes of asserting a workers’ compensation claim, an employee who has been injured while engaged in a recreational break may be able to argue successfully that the injury arose out of and was suffered in the course of employment. LeSuer-Johnson v. Rollins-Burdick Hunter of Alaska, 808 P.2d 266 (Alaska 1991); M-K Rivers v. Schleifman, 599 P.2d 132 (Alaska 1979). Moreover, the statutory presumption of compensability may substantially aid a workers’ compensation claim. AS 23.30.120(a)(1).1
Authority interpreting the Alaska Workers’ Compensation Act does not establish that the Alaska Workers’ Compensation Board would have been obliged to rule for Witmer if he had filed a workers’ compensation claim, nor does it establish that Witmer’s tort claim against his employer is barred as a matter of law by the exclusive liability section of the Alaska Workers’ Compensation Act. AS 23.30.055. Given the evidence, there are issues of fact which must be re*668solved by the appropriate fact finder. If the employee brings a tort suit, the appropriate fact finder is the trial jury. If the worker files a workers’ compensation claim, the appropriate fact finder is the Alaska Workers’ Compensation Board.
In short, Witmer’s deposition testimony and affidavit create sufficient question about his purpose that they present a genuine fact dispute which must be resolved by a fact finder.
I would consequently reverse the summary judgment entered in favor of Kellen and Wit-Rey.
. But compare the definition of "arising out of and in the course of employment" found in AS 23.30.265(2):
(2) “arising out of and in the course of employment ’’ includes employer-required or supplied travel to and from a remote job site; activities performed at the direction or under the control of the employer; and employer-sanctioned activities at employer-provided facilities; but excludes activities of a personal nature away from employer-provided facilities.
(Emphasis added.) I do not consider Kellen's car to be an "employer-provided facilitly].”