865 N.W.2d 133
S.D.2015Background
- Petrik, a concrete laborer for JJ Concrete, injured his ankle while running on an open job site after tricking a coworker out of an air-conditioned truck.
- The injury occurred during a hot idle period while workers waited for a concrete truck to arrive; horseplay occurred during this lull.
- JJ Concrete and EMC Insurance denied benefits, arguing the injury did not arise out of or occur in the course of employment due to prohibited horseplay and lack of business purpose.
- The Department of Labor found the injury arose out of employment but not in the course of employment, applying a four-factor test for horseplay from Phillips v. John Morrell & Co.
- Petryk appealed; the circuit court affirmed the Department on the ‘in the course of’ issue, while Employer/Insurer cross-appealed on the ‘arising out of’ issue.
- The Supreme Court reversed in part on the course question and remanded for an award of benefits, while affirming the finding that the injury arose out of employment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Petrik’s injury arise out of the employment? | Petrik’s idle period at work contributed to the hazard. | A non-work-related horseplay act cannot arise out of employment. | Yes; employment contributed to the hazard, satisfying arising out. |
| Was Petrik’s injury in the course of the employment? | Idle waiting time and incidental horseplay are related to employment. | Running through the site constitutes an abandonment of duties and is not within the course of employment. | Yes; the act occurred during wait time and was incidental to Petrik’s employment, not a complete abandonment. |
Key Cases Cited
- Phillips v. John Morrell & Co., 484 N.W.2d 527 (S.D. 1992) (adopts four-factor test for horseplay and in-course analysis)
- Mudlin v. Hills Materials Co., 698 N.W.2d 67 (S.D. 2005) (defines arising out and in the course of as independent factors)
- Bearshield v. City of Gregory, 278 N.W.2d 166 (S.D. 1979) (scope of in the course of employment guidance)
- Progressive Halcyon Ins. Co. v. Philippi, 754 N.W.2d 646 (S.D. 2008) (defines time/place/circumstances approach in course analysis)
- Fair v. Nash Finch Co., 728 N.W.2d 623 (S.D. 2007) (deference to department findings with de novo review of law)
- Grauel v. S.D. Sch. of Mines & Tech., 619 N.W.2d 260 (S.D. 2000) (remedial and liberal construction of workers’ compensation)