Tuesday, March 15, 2016

The Cement Fight and the Handmaiden Mischief

I was recently reminded of a case in which I was involved twenty years ago. The case all started with a farmer who needed a barn. He hired a contractor to pour a concrete foundation. This involved some form building and then spreading and smoothing of concrete, delivered by a series of large trucks. Unfortunately, there was some hiccup in the truck scheduling, or traffic, but for whatever reason the crew had spread and smoothed about half of the job and then stalled waiting for the next truck. 

Several of the crew tried to remain productive, hand-smoothing a corner of the project at which the pour had begun. My client explained to me that this was not "real work" but it occupied their time waiting for the next truck. Some residual water was pooling on the curing concrete and some apparently got splashed on my client by his supervisor's trowel, and there was general laughter. My client then scooped some concrete with two fingers and flipped it onto the shirt of the supervisor, and again there was laughter. If you have ever worked in construction, you have seen this or something like it. 

The supervisor was not amused. Words were said, pushing followed, punches were thrown. By all accounts, the supervisor beat my client pretty thoroughly. Eventually some co-workers pulled the supervisor off, there was more laughter, and my client departed for home to nurse his wounds, physical and emotional. The next day he awoke with a painful and swollen back, visited the emergency room, and hired his first attorney. 

I forget now how many attorneys had represented him when I became involved. I am certain that there were two before me. It was a difficult case in a close-knit rural community, in which all of the witnesses were employed by the fellow we were accusing of doing the beating. My client was accused of being the aggressor. There was ample testimony that "his back was not hurt when he left." There was the "horseplay" defense, the substantial deviation allegation, and several references to what the insurance carrier perceived as his less-than-savory past.

The Capitol Journal recently reported on the South Dakota Supreme Court deciding an interesting case of a workplace prank. When I read it, I was reminded of that barn foundation. In South Dakota, the case arose on a hot August day, and the employees were concrete laborers. The story started with the crew in the air-conditioned cab of a truck. For the uninitiated, you cannot spread concrete from the cab of a truck, and this made me think of my former client waiting on that next load of concrete. 

In August, 2012 the South Dakota worker, Jason Petrik, played a prank on a coworker. He tricked the coworker into getting out of the air-conditioned truck. Shortly thereafter, he was running from that coworker when he jumped a ditch and broke his ankle. According to the Court's decision the employer/carrier alleged that this was "horseplay" and as such the accident did not "arise out of" and was not "in the course of" the employment. The Department of Labor ruled that it was not "in the course of," and the case began its path through the appellate process. 

The Court noted that Petrik was “injured during a period of time in which he was required to standby and remain idle until the concrete truck arrived.” The Court noted that the playing of a prank is an activity “in which employees might reasonably engage.” Thus, the Court concluded that the injury did “arise from” the employment. 

The Court cited Larsons and reviewed the tests for deviation from employment. And discussed at length prior South Dakota precedent on horseplay and deviation. It then changed its standard for such cases, saying it is “critical to our consideration on factor one whether the act of horseplay occurred when there was a lull in work.” The Court explained that this is important because “when there are no work duties to perform, there is no work to abandon" and "its common knowledge, embodied in more than one old saw, that idleness breeds mischief.” Furthermore, “if idleness is a fixture of the employment, its handmaiden mischief is also.”

The Court concluded that running through the job site was “foolish” and “dangerous.” But “however misguided” the running and jumping was a “momentary and impulsive deviation during a lull in work,” and was thus “insubstantial.” One of the authorities cited is Florida's Dunlevy v. Seminole County, 792 So.2d 592 (Fla. 1st DCA 2001). The Court explained that the horseplay or deviation in this instance was “commingled” with Petrik’s work duties, because his duty at that time was to be present and to wait on the concrete truck.

After a thorough discussion of the Larson factors, the Court reiterated that running on a job site is serious: “running (was) . . . against the employer’s rules;” but that the “deviation lasted mere moments;” and that the “running was misguided;” but “did not require him to abandon any job duties.” 

The Court concluded this to be a “close question.” Noting that in South Dakota the “workers’ compensation laws are ‘remedial in nature and entitled to a liberal construction’” the Court held that the “liberal construction must be in favor of the injured worker.” 

More recently, the Appeals Court of Massachusetts decided a fight case, reported by WorkCompCentral. There a disagreement ensued and words between Svenson and Hammond led to punches. The recovering worker, Svenson, was diagnosed with major depression and post-traumatic stress disorder. He sought payment of benefits beginning in 2009. 

The Judge found that Hammond was a "person regularly entrusted with powers of superintendence" over Svenson (he was a supervisor). And upon that finding, the judge awarded Svenson "double compensation." The appellate court affirmed this determination, noting that entitlement to double compensation in Massachusetts is proper if "(1) an employee or supervisor (2) committed serious and willful misconduct that (3) caused the employee's injury." 

So there are a variety of laws that address the workplace fight or flight. Deviations from the actual work may still be covered by workers' compensation. It may be the supervisor's burden to keep idleness and "its handmaiden mischief" away from the work site. It is the supervisor's burden to solve workplace disputes without resort to fists and fights. Some laws dissuade employees in this regard, but Massachusetts' law puts a financial burden on employers that should encourage better behavior. 

I recall that my case settled years ago. With all those fact witnesses, it would have been a swearing match I fear. I will always wonder how it would have come out if we had tried it. I also look back on all those times a supervisor had me doing busy work, in which I perceived no possible purpose. Now I get it, perhaps they were merely distracting me from mischief.



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