Wednesday, May 14, 2014

Is your company "huggy?"

Is your company "huggy?" Should it matter?

The following analysis is about vicarious liability of an employer, not workers' compensation. In this context, a court focused narrowly on the specific duties of the employee, without consideration of momentary deviation from employment. There have been many comp cases in which momentary deviations from employment duties have been insufficient to support a conclusion the employee was not in the "course and scope" when an employer sought to avoid workers' compensation liability. 

The Illiniois Second District Court on May 2, 2014 issued Parks v. Dennis Brinkman, No. 2-13-0633. The essential facts are not that complex, the plaintff fell to the ground and suffered personal injury. That happens somewhere every day. The cause of the fall is more interesting. Plaintiff was hugged and then picked up by defendant Brinkman, who then fell with Plaintiff in his arms and was injured. Whether Brinkmann had been drinking and whether he had a history of touching people are also discussed in the case.

The injury happened at a Jaycee event at which Brinkman, a member, was a volunteer serving beer. Plaintiff sued Brinkman for injury and sought to hold both the Jaycees and the location owner vicariously liable for his actions. She essentially alleged the Jaycee club was Brinkman's employer, and thus he was their agent. The trial court dismissed the location owner and the Plaintiff later dismissed Brinkman. Thus, the case proceeded to trial on the vicarious liability of the "employer" Jaycees, based upon their "negligent supervision" of Brinkmann.

The court noted that a "central issue" for trial and appeal was whether "hugging was within the scope of Brinkman's employment as a volunteer." This was critical in this case not in the sense of whether Parks would receive workers' compensation (she was also a Jaycee volunteer, but there was no allegation of workers' compensation liability), but whether the injury Brinkman caused was the responsibility of the Jaycees. As an aside, it is curious that Parks did not seek workers' compensation from the Jaycees as everyone seems to concede Brinkman is a Jaycee employee despite his volunteer status, so one wonders why Parks would not be the same?

Though it is not a workers' compensation case, it raises the same kind of "course and scope" issues with which workers' compensation so often struggles. Parks was volunteering at a Jaycee event, but was not a member. When she arrived that morning, she "greeted several of the Jaycees, hugging them as she did so." She had previously met Brinkman, and on other occassions "Brinkman hugged her and she hugged him back." That morning, when she encountered Brinkman, he hugged her. She testified that she was "not expecting" his hug, and that he not only hugged her, but hoisted her onto his shoulder. 

Then they both fell with Brinkman landing on top of Parks. She sustained injuries to her shoulder, neck and back in the fall. She admitted she had been hugged by Jaycees before, but testified that she had never been picked up by a Jaycee, and that this was unexpected. 

The trial included ample analysis of "the role of hugging with the Jaycees." This included "various witnesses" and discussion of whether it was "common for them to greet one another with hugs." The Court noted that this was a club that encouraged a "friendly atmosphere," where members were "warm and friendly," but were not instructed to hug. The organization had "no policy encouraging hugging of physical contact." Much trial focus on the hugs and not much on the "lifting."

The Jury sided with Plaintiff and awarded over two hundred fifty thousand dollars in damages. The Jaycees argued on appeal that Brinkman was not in the course of his duties and asked reversal of the finding of vicarious liability. 

The appellate court described a three part test of agency, and noted there was no dispute regarding the first part, that Brinkman's conduct "occurred during the time and place of his employment." The questions therefore were whether "Brinkman's conduct was of the type he was employed to perform" and whether "he was motivated partly or wholly by a desire to serve" the Jaycees. 

The Court decided the case on the failure of the second element, concluding there was ample evidence that the Jaycees were a "huggy organization." However, it noted "the record is clear that such hugs were not required as part of the job duties." No witnesses testified that Brinkman's conduct of hugging and picking up the Plaintiff "was part of his assigned job duties." 

The Court held that Brinkman's "conduct at the time of the accident was outside of his assigned job duties" and that therefore the Jaycees were not be vicariously liable. The Court explained that even if the "huggy" nature of the group created a foreseeability issue that a jury should have been allowed to consider, the real issue for the trial was the "lifting" more than the hugging. As this "lifting" was admittedly an "unusual act," the Court concluded that its agency analysis outcome would not be different if a forseeability analysis had been employed. The Court therefore directed entry of judgement for the Jaycees. 

Would the outcome be the same if it were Brinkman who had been injured and sought workers' compensation, or if Parks had sought those benefits as a "volunteer" employee? In that setting, one might argue that the "lifting" was horseplay, such a deviation from job duties as to justify a conclusion that he departed from the "course and scope." What if there had been no "lifting" and Brinkman was instead injured through just the hug? Since there was no employer policy requiring hugs, would the Jaycees have nonetheless avoided liability for such a comp  injury caused by the hug, or would the court conclude that a voluntary hug is a minor deviation from employment?

When a court looks at a legal concept like "course and scope" should it address that concept only within the context of the current case, here an agency analysis, or consider the impact that unharmonized determinations could have throughout the law of the state? The court may later hear Parks v. Dennis Brinkman cited in workers' compensation cases in support of a more strict interpretation of course and scope. A brief discussion of the horseplay concept in regard to the "lifting" might have made for a better explanation of the outcome, and a clearer precedent. 

All that time spent at trial on the question of whether the Jaycees were "huggy" did not determine the ultimate outcome. The appellate court focused instead on whether hugging was a specific job duty. They clarified that even if the Jaycees were "huggy," that did not create forseeability as the "lifting" caused the injury. 

I guess in this instance it did not matter the Jaycees are "huggy" and we are left to wonder whether that would ever be relevant. An interesting case, with much to think about. 

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