*1 PROWS, Petitioner, Michael UTAH, OF
INDUSTRIAL COMMISSION Brunswig
Bergin Associ- Indemnity Company, Respondents.
ated Nielsen, Henriod, J. Bruce Nelson of No. 16456. Peck, City, & Lake for Gottfredsen Salt
Supreme Court of Utah. petitioner. 4, April Hansen, Gen., Frank Atty. Robert B. V.
Nelson, Gen., Atty. L. Poel- Asst. Stuart respondents. man, City, for Lake Salt WILKINS, Justice: Order of appeal from an This is (hereafter Commission “Commis- sion”) for denying application Work- by Compensation men’s benefits Michael “Petitioner”). (hereafter Prows essentially of this case are un- The facts employed Petitioner as disputed. was Bergin by Respondent truck driver Brun- (hereafter “Bergin”). swig Company His loading supplies medical duties included making delivery onto his truck and deliver- doctors, hospitals, ies and clinics. containing supplies The boxes the medical approximately eleven and one- measured inches, twenty-four half each box (also was elastic secured bands described bands”). as Each band “rubber approximately long by twelve inches three- eighths inch wide.
Testimony before the administrative law judge established that the rubber bands Bergin’s employees some of were used fights”. for bands Petitioner and “rubber co-employees one his testified that the daily were an “fights” almost occurrence. Bergin’s supervisors One of testified that he “fights” perhaps two or observed three month, times a and that when observed discouraged one he its continuation. 3,1978, was engaged On March assigned loading in his usual duties and was As he supplies delivery truck. boxes of from unloading supplies a hand truck, delivery truck and onto his he was hit or two which were by one rubber bands *2 discussing In construction of the and flipped by co-employees at him two stand- act thereupon ing nearby. flipped of the this underlying purposes the act rubber at his “attacker”. One of band back in Court on,4 Chandler v. Commissi co-employees ripped approxi- the then stated: mately long piece inch wood off eighteen of that our We are also reminded statute and came toward Petitioner nearby pallet the requires that statutes § [now 68-3-2] like a brandishing the wood sword. Peti- “liberally of this state are to be construed his co-employee, tioner the wood from took objects with a to effect the of the view between placed a rubber band the handles promote justice.” statutes and to attempted of his and to shoot hand truck the the severely had indulged tive law ing type ment of the horseplay represented accident arose his the Motion for In employment.”1 wood into the petitioner air, administrative been flipping piece denying of not condoned activity struck Petitioner injuring him. judge in numerous incidents of of Review, by employee’s compensation wood, had “failed to out of or was in found, Bergin’s employees, had been air in a law the Commission In instead by bands, inter denying judge’s “complete Bergin; duties”; slingshot in discouraged the alia, of and that the prove the Findings “horseplay” sailing administra- Petitioner’s that there right eye, abandon- that and scope fashion. adopted that his includ- that into and the of of damages the juries In this that the out of dependents in case death and expenses of act is in no sense to be considered as ry enterprise, including compensation for in- whole ment. must be of [*] relation employé, right cost and to connection it must [or] Under such compensation provided taxed for the sfe employés Compensation to in the course conducting the business or existing compensation and that to the business. The theo- expense injured employé or # an act the costs and or other between [*] of the Act is be of the employ- conducting arises out of injury remembered [*] supervenes. casualties, for in the employer that arises to his [*] business is added to the cost Fact, as aforesaid Law, of and Conclusions Order. sold, produced that are articles Section 35-1-452 Utah’s Workmen’s hence, run, long such costs and Compensation provides pertinent Act is, expenses public; borne that are part: articles produc- the consumers of the Every employee . . . who is in- act, ed. The of such an there- purpose jured arising ... accident out fore, employé is protect those employment, or in the course of his him, and in case of his dependent upon occurred, injury provid- such wheresoever provide ade- injury serious or death ed was not self-in- purposely the same support quate for the of those means flicted, be entitled to receive and shall view, therefore, In dependent upon him. compensation shall for loss paid, be disability or death of that case of total such injury sustained on account of . be- employé dependents might as is provided.3 herein injured employment, concept “Scope Employment” be is worker 1. The foreign compensa- employment. A one to the law of workmen’s in the course of his definition tion, belonging employment” rather in the law of master and is found in of the term “course Therefore, petitioner way Larson, Compensa- servant. in no can The Law of Workmen's proving place have the (1979), considered to burden of tion 14: “when takes within § scope in the place the accident “was period employment at a where employment.” be, employee reasonably may and while he doing fulfilling engaged in some- is his duties or Ann., 1953, 2. All Utah references are to Code thing thereto.” incidental as amended. 217-218, 1021-1022 P. clearly kept It in mind stat- must be that the requires ute arise that the in the course objects come the public charity, keep such a We must negli- mind that neither calamity by requiring is avoided gence misconduct, busi- wilful even [n]or ness or enterprise provide for such though proximate such were the sole dependents, with right death, cause of his would defeat an er to add the paid amount that is out to award in 1—45], this case. Under Sec. [35— the cost producing and selling the a recovery granted every case where product of enterprise. such business or *3 employee by arising an is killed accident The beneficent purposes of such acts are employment, “provid- in the course of his all, therefore apparent to and for that ed purposely the same is not self-inflict- reason, other, if for no should receive a ed.”7 very liberal construction in favor of the mind, With in principles these basic we injured employé. We are all upon united turn now to analysis an of whether and the proposition that in view pur- injuries under what circumstances sus- poses acts, of such in case there any “horseplay” part tained as a result of on the respecting right doubt compensa- of an employee may compensated not be tion, such doubt should be resolved in under the act. favor of the or of employé dependents his treatise, In his The Law of Workmen’s as the case may be. Compensation (1979), Professor Arthur Lar- Court, This along with the courts of other (hereafter “Larson”) son lists four “actual jurisdictions, recognized has that concepts suggested or problem” treatments of the of negligence, contributory negligence, participants horseplay:8 in fault, and similar tort concepts have no 1. The which re- defense” “aggressor place within the remedial framework of the sults in the denial of compensation any compensation act. In Twin Canning Peaks case where injured employee instigated Commission,5 Co. v. Industrial this Court or participated in the horseplay. It is rea- stated: by instigating soned that the horseplay the Our only statute injuries those exclude[d] employee has voluntarily stepped aside which are “purposely self-inflicted.” As from employment.9 his statute, therefore, we read the it is not
enough
employé
2. The New York Rule which
merely
permits
disre-
gards
rule, regulation,
instigator
some
even an
participant
or order of
or
master,
horseplay
horseplay
since such conduct
to recover if the
may con-
was a
stitute nothing
regular
more than ordinary negli-
employment
incident of the
as dis-
gence
tinguished
on the employé,
from an isolated act.10
mere negligence does not destroy the
3. The
instigator
partici-
view that an
right to compensation.
pant should be treated the same as a non-
Likewise, in M & K Corporation v.
participant
Indus-
since it is the conditions of the
Commission,6
trial
we stated:
employment that induce the horseplay.11
589, 603,
853, 859,
5.
Singleton
(W.Va.1961);
Younger
196 P.
v.
20 A.L.R.
821
Broth
(1921).
ers, Inc.,
872
(La.App.1971);
Gurski
4. The rule
Larson
if,
recover
instigator or
should
participant
alleged-
deceased was
by
which elevator
stan-
ordinary
employment”
“course of
Although
employer.
ly
forbidden
dards,
does not
indulgence
horseplay
from
are
employment”
the words “deviation
to a
deviation from
amount
opinion,
found
the Twin Peaks
nowhere
employment.12
wrestling
with
it is clear
the Court
a
from the
approach
question
of when deviation
As the basis for
fourth
above,
proposes
four-part
test
employee
suffi-
assigned duties of
act
analyze any particular
to take that
out of
cient
consti
determine whether the
view,
In our
employment.
course
jus
as to
tutes such substantial deviation
though lacking the
analysis in Twin Peaks
tify denying compensation
participant
ato
test proposed
formal structure of the
participa
therein. Whether initiation of or
Larson,
gen-
on
supra, is founded
the same
is a deviation from course
tion
We
Lar-
principles.15
adopt
eral
therefore
employment depends
(1)
the extent
four-part
*4
son’s
test to determine whether
deviation, (2) the
and seriousness of the
such
particular
horseplay
act of
constitutes
e.,
(i.
completeness of the deviation
whether
the
deviation that
it can be said that
the
of
commingled
performance
it was
with
arise in the course
resulting
did not
injury
duty),
or
of
duty
involved an abandonment
employment and hence is not com-
(3)
practice
the extent
to which
of
the
pensable.
accepted part
become an
had
employment,
(4)
extent
(1)
the
the
Extent
of the devia-
and seriousness
may
the
the employment
which
nature of
tion.
horsep
expected
include some such
be
Peaks,
ob-
supra,
Twin
the Court
In
lay.13
served:
only one
This Court has heretofore had
the
cases
reading of
decided
A careful
occasion to examine
issue
will, however,
mere fact
that the
disclose
compensation setting.
In
in the workmen’s
injured
at
time of
employé,
that the
Canning
Peaks
v. Industrial
Company
Twin
accident,
discharge
in the
was
Commission,
compensa-
supra, an award of
directly
not-
en-
his usual duties or was
of a worker who was
dependents
tion to the
with those
connected
gaged
anything
as a
in which “the
killed
result of
duties,
necessarily
him
prevent
does not
instigator
princi-
deceased was the
in case of
recovering compensation
from
if not
pal,
the sole actor”14 was affirmed
In that connection
injury.
accidental
analysis
The
in Twin Peaks
this Court.
that,
human
while a
must be remembered
employee
on
turned
whether the deceased
than
a ma-
more
what
being
do no
“in
be
been
while
could
said to have
killed
do,
can not be classed
might
he
yet
chine
employment
light
the course of” his
merely.16
using
an
located
as a machine
his activities
elevator
employer and whether
of a rule
Id.
to have
death could be considered
worker’s
Id. at
5-122.
Peaks,
“purposely
Twin
been
self-inflicted.”
603-604,
supra,
[workers],”17 it is clear that the rea better particular . act of horseplay soned for the decisions make allowances judged according to be is entitled to the fact cannot be expected workers same standards of and duration exten[t] assigned attend their ev strictly to duties accepted of deviation that are in other ery job. on the they minute are That is not fi[e]lds, resting, seeking personal such as to say job that substantial from excursions comfort, per- or indulging incidental assignments need tolerated or if sonal errands. If an momenta- excursions, occurs during compensa rily co-employee walks over to a to en- bar, tion need be In at paid. the case two, in a gage friendly word this Petitioner engaged performance in the nowadays would be called insubstan- of his assigned playful duties when he was accompanies tial If deviation. ly “attacked” flipping co-workers friendly playful jab word with a in the bands. then momentarily Petitioner set ribs, surely it be said cannot that an aside up challenge. his duties and took entirely principles new set of has come minutes, In an lasting a matter exchange remains play. simple into incident injured. points As subject diversion to the same human tests out: departure the employ- extent from playful ment as if the gesture character horse- had been of a
play should omitted. judged by deviation not be consequences seriousness of its extreme, At the other there are cases
light of but hindsight, by the extent of *5 prankster in which the prac- undertakes a the in itself. work-departure This is not joke tical which the complete necessitates do, always easy especially to a tri- when employment abandonment of the and the fling explodes energies incident escalates or into a concentration of all his for a major part tragedy.18 working substantial time on horseplay enterprise. the When this We think principle the converse of this is sufficiently complete abandonment is true; likewise major trage- the fact that a extensive, it can treated the same only be dy has occurred should not dictate an award employment as abandonment of the for compensation of when that tragedy resulted personal any purpose, other such as an from a so deviation extensive and serious personal or extended errand an intention- that the can employment be said have (footnotes nap.19 omitted) al four-hour been However, opinion abandoned. it is our (3) Extent horseplay which has be- that the deviation involved in case the at of the part employment. come a bar was short in duration and when disasso- ciated from consequences the serious which hearing the The evidence adduced at be- resulted, trivial. relatively judge fore the administrative law was con- on the of flicting frequency “rubber band
(2) Completeness of the deviation.
fights,”
clearly
“fights”
but
had be-
was, at
the time he was “at-
part
come a
of the employment, whether
tacked”
in
co-employees,engaged
the
“daily”
“fights”
the
occurred
or “two or
discharge of his duties. Had he not been
three times a month.”
injured, he
presumably
complet-
would
have
As
points
out:
ed loading the truck and carried on with his
deliveries.
engaged
The
in
controlling
issue is whether the cus-
was clearly “commingled
perform-
part
with the
tom had in fact
a
of
become
the
ance of duty” and hence did not constitute
employment;
employer’s knowledge
the
17. Ognibene
Manufacturing
Rochester
Com
(Des
1A Larson at 5-152.
pany,
(1948)
N.Y.
N.E.2d 749
mond, J., dissenting,
751).
of it
make it neither more
less a
which mechanical
can
involving horseplay
most
part
employment
plication
of the
it
will
cases
—at
incorporation
practice
the
ap-
of
of
“correct
Indeed this
evidence
dictate a
result”.
(italics in
employment.20
origi-
susceptible
into
of
proach
ap-
is not
mechanical
nal)
as a
plication but rather is intended
method
of
to assist the Industrial Commis-
analysis
appar-
We
consider
fact that
do not
coming
cases
sion in consideration of future
Bergin
of
had ever at-
ently
no
It
involving horseplay.
before
is this
flip
of
with
tempted
piece
before
a
wood
underlying poli-
that when the
Court’s view
that
indicating
a
band as
such a
cy
compensation
act is effectuated
part
be
practice could not
considered
herein,
analysis suggested
light
of the
prac-
employment.
elements
expected.
can be
rational result
tice,
be
to have
which must
conceded
been
were not
part
employment,
signifi-
of the
propo-
to the
While we remain committed
as
cantly enlarged or so modified so
to no
will examine the evi-
sition
this Court
that
part
employment.
longer
constitute
only
case
to as-
compensation
dence in a
any
certain whether there is
substantial
(4)
to which nature of
Extent
findings
support
evidence
expected to include some such
may
ment
the Commission
Commission and whether
horseplay.
juris-
has
without
in excess
its
acted
approach
This
focus-
element
Larson’s
diction,23under the facts of this case we
on
foreseeability
any
es
believe as a matter of law
there
given
employment environment
it can
not a
deviation such that
particular
act of
involved. Con-
resulting
did not
be said that
analy-
which
enter into
siderations
employment
course of
arise in the
point
sis of
whether the work
include
compensible. The record here-
hence is not
activity
lulls in
or is
employment
involves
support-
evidence
in reveals no substantial
continuous,21
essentially
and the existence
ing
finding of
the Commission
which are
instrumentalities
Petitioner “com-
engaging
horseplay,
readily
which are
work environment and
his duties and hence
pletely abandoned”
*6
list is
usable in
situations.22 This
injured
employ-
in the course
was not
not
but
intended to
exhaustive
rather
of the Commis-
ment. Therefore
Order
possibilities.
of the
In the
illustrative
to Petitioner and
sion
reversed. Costs
elements which
present case all
against Bergin.
joined
injury
to result
Petitioner’s
—the
bands,
truck,
hand
the rubber
and the piece
STEWART, JJ.,
and
concur.
MAUGHAN
parcel
the work
wood—were
It
is not difficult
environment.
therefore
HALL,
(dissenting):
Justice
of the
en-
type
to foresee that
I
dissent.
gaged
expected.
respectfully
was to be
Commission,
In
of the
suggested by
reversing the order
By adopting
approach
“as a
Larson,
opinion
rules
matter
majority
this Court does not
intend
80,
Plym
(1922);
103
order.3
I would affirm.
CROCKETT, J., concurs in the dissent C. HALL, J. COMPANY, FINANCE
SUGARHOUSE Appellant,
Plaintiff and
Eugene L. and Colleen W. ANDERSON
Anderson, Defendants and
Respondents.
No. 16462.
Supreme of Utah. Court
April
*8
(1936),
Commission,
v. Industrial Com-
and Kavalinakis
724
mission,
17 Utah
3. See Va use v. Industrial
(1965), citing