PAID TO HORSEPLAY: AN ANALYSIS OF SOUTH DAKOTA'S ALLOWANCE OF HORSEPLAY IN THE WORKPLACE TO BE COMPENSABLE.

• Author: Haigh, Tyler

1. INTRODUCTION

   In 2015, the South Dakota Supreme Court expanded its liberal view in favor of claimants petitioning for workers' compensation benefits. (1) In Petrik v. JJ Concrete Inc., the court held that an employee who was injured during an act of horseplay was entitled to collect workers' compensation. (2) The employee's injury, which occurred as a result of playing a prank on a co-worker and then running around a dangerous construction site, was found to have "arisen out of and "in the course" of the employee's employment. (3) Despite the undisputed facts showing that the claimant was the cause of his own injuries while not in furtherance of the employer's interest, the court ruled in favor of the claimant. (4) The court's "lull in work" theory presented employees, who were injured while waiting for additional work at their employment, with a remedy for their injury by broadening the workers' compensation analysis for claimants. (5)

   This article examines the considerations that the court left out in its analysis of Petrik, as well as previous workers' compensation cases in South Dakota. After a discussion of the facts and procedural history of Petrik, this article describes the background of workers' compensation in South Dakota. (6) The background provides a framework for factors the court looks at in determining whether a workers' compensation claimant's injury arose out of and in the course of his or her employment. (7) The background is followed by an analysis of the direction in which South Dakota is headed with regard to horseplay in workers' compensation, including a description of how the court has made misjudgments in its previous decisions. (8) This article provides several suggestions, and ultimately concludes that the law must be modified to make workers' compensation laws more fair and reasonable for employers. (9) The recommendations include steps that can be taken by the South Dakota Supreme Court and the South Dakota Legislature can take to make sure changes are made to improve public policy on this issue. (10)

2. PETRIK V. JJ CONCRETE: AN ILLUSTRATION OF THE DIRECTION SOUTH DAKOTA IS HEADED IN ADDRESSING HORSEPLAY IN WORKERS' COMPENSATION

   1. FACTUAL BACKGROUND

      JJ Concrete is a construction company located in Tea, South Dakota, mainly engaged in the business of pouring concrete for residential or commercial structures." Jamie Poppe, along with his wife, has owned JJ Concrete since March 2004. (12) Poppe is a supervisor and manager who oversees daily management of the business. (13) Jason Petrik was hired by JJ Concrete in February 2011 as a laborer, responsible for pinning out footings, placing string lines, staking, setting up forms, and pouring concrete at each of the job sites. (14)

      Petrik had many friends he worked and socialized with outside of work. (15) As a result, they would often play jokes on each other or give each other grief while they were at work. (16) The jokes were nothing more than a few pranks, which Petrik and his co-workers found to be made in good fun. (17) While the workers would poke fun at each other on numerous occasions, it was not a common occurrence, and had never resulted in someone being placed at risk of injuring himself or herself. (18)

      These pranks continued from time to time, despite the safety manual that JJ Concrete handed out to each of its employees on their first day of work. (19) The safety manual included several brief sections that totaled about twelve pages, along with a page that each employee was required to sign. (20) In the "General Safety Rules" section of the safety manual, a rule specifically stated that "[hjorseplay will not be tolerated." (21) While Petrik recognized that he had a responsibility to read the safety manual, most of the rules were general provisions that would be expected to be seen in a construction safety manual. (22) JJ Concrete also required each of its employees to attend safety meetings that were held once per month covering a range of issues. (23)

      On a typical day, JJ Concrete required its employees to pour footings or foundations in several dug trenches. (24) After finishing that preparation work, the employees would wait for a concrete truck to come in to complete the work. (25) While waiting for the truck to arrive, the employees, including Petrik, were responsible for cleaning up the site, putting equipment and tools away, and engaging in other productive tasks. (26) When the site was ready for the pour, employees could be expected to have some downtime to have a lunch break and wait for the concrete truck to arrive. (27) Sometimes Petrik and his co-workers would drive their personal vehicles to a nearby gas station to get some snacks before returning to work when the trucks arrived. (28)

      On August 23, 2012, during a normal work day, the JJ Concrete employees had completed all their work and were having a lunch break while waiting for the concrete truck to arrive on the site. (29) As they were waiting, Petrik drove his personal vehicle to a gas station to put some air in the tires before returning to the work site. (30) Upon returning to the site, there were no supervisors around to direct the employees as they waited for the truck. (31) It was a hot day and some of the employees were sitting in an air-conditioned pickup truck while they were waiting. (32) One such employee was Kevin Cole. (33) As Cole sat in the pickup to cool off, Petrik decided to pull a prank to lure Cole out of the truck so that Petrik could take his seat and have some time to cool off before they started work again. (34) Petrik told Cole that there was a co-worker who needed to speak with him on the other side of the site, and when Cole got out to talk with the co-worker, Petrik took his spot in the truck. (35)

      When Petrik returned to the site after sitting in the pickup for a few minutes, he saw Cole, which created a short-lived chase through the job site. (36) During the chase, two other co-workers yelled at Petrik and Cole to stop chasing each other around the job site. (37) As the workers continued to chase each other, Petrik tried to jump over one of the trenches and ended up breaking his ankle in an awkward fall. (38) After the fall, Petrik recognized the significance of the injury and had Cole drive him to the hospital to receive medical treatment. (39) Petrik called Poppe to notify him of the injury before leaving for the hospital. (40) Poppe later followed up with Petrik, hearing him admit that he was messing around and stating that he would take care of the medical bills with his own insurance because of his conduct. (41)

   2. PROCEDURAL HISTORY

      Soon after Petrik's injury, he requested workers' compensation benefits and was denied by JJ Concrete and its insurer, EMC Insurance Company. (42) Petrik then filed a petition for benefits and had a hearing held on May 22, 2013. (43) The Department denied the benefits, stating that although the injury arose out of employment, Petrik substantially deviated from his regular work activities and therefore it did not commence in the scope of employment. (44)

      The Sixth Circuit affirmed the Department's determination in a letter from the Honorable Mark Barnett of the Sixth Judicial Circuit Court in South Dakota. (45) Judge Barnett agreed that the injury arose out of the employment, and, like the Department, came to the same conclusion on the issue of whether the injury occurred in the course of employment. (46) Using Larson's treatise on workers' compensation law, Judge Barnett shelved Petrik's contention that a "lull in work" theory warranted reparation for his injury on the job. (47) He found that the deviation of running through a workplace, which Petrik recognized to be a dangerous construction site, was a substantial digression and that any lull in the work activity should not permit employees to commit dangerous acts. (48) As a result, the Sixth Circuit affirmed the Department's determination, leading to the appeal at the Supreme Court of South Dakota. (49)

      The court reviewed the Department's decision in the same manner as the Sixth Circuit, without presuming the circuit court's conclusion to be correct. (50) In doing so, the court found that the Department was correct in finding that Petrik's injury arose out of the employment, as "[h]e was injured during a period of time in which he was required to standby and remain idle until the concrete truck arrived." (51) The question of whether the injury took place in the course of employment, however, was analyzed under a four-factor test. (52) The four factors, from Phillips v. John Morrell & Co., (53) included:

      (1) the extent and seriousness of the deviation [from the course of employment], (2) the completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty), (3) the extent to which the practice of horseplay had become an accepted part of the employment, and (4) the extent to which the nature of the employment may be expected to include some such horseplay. (54) In reviewing the first factor, the court found that, although running through a job site was "dangerous" and "foolish," the deviation was insubstantial because there was a "lull in work" as Petrik had no other work duties to perform. (55) On the second factor, the court held that Petrik's deviation was commingled with his job duties because it occurred while he was waiting for the concrete truck to arrive on the site. (56) In addressing the third and fourth factors, the court found that although there was no evidence to suggest that running through the work site was an accepted part of the job, under the third factor, it was to be expected when there were waiting times on the site. (57) After reviewing the factors, the court reversed the Sixth Circuit's ruling that the injury did not occur in the course of employment. (58) As a result, the case was remanded to the Department to award workers' compensation...