Considered On Briefs February 17, 2015
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA. THE HONORABLE MARK BARNETT, Judge.
MICHAEL D. BORNITZ, JOSEPH M. DYLLA of Cutler & Donahoe, LLP, Sioux Falls, South Dakota, Attorneys for appellant.
CHARLES A. LARSON of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for appellee.
KERN, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.
[¶1] Jason Petrik (Employee) was injured when he ran from a co-worker on the job site after tricking that co-worker out of an air-conditioned truck. JJ Concrete, Inc. (Employer) and EMC Insurance Company (Insurer) denied workers' compensation benefits to Employee because Employee's act was horseplay and, therefore, the injury did not " arise out of" or " in the course of" his employment. After a hearing, the South Dakota Department of Labor ruled that Employee's injury " arose out of" his employment, but did not occur " in the course of" the employment and denied Employee benefits. The circuit court affirmed. Employee appeals and Employer and Insurer filed a notice of review. We reverse in part, affirm in part, and remand to the Department to establish benefits.
[¶2] JJ Concrete employed Jason Petrik as a concrete laborer beginning in 2011. Petrik's duties involved pinning footings, placing stake lines, and setting foundation forms at the job sites. His employment also involved idle times when he and his co-workers were required to wait for other work to be completed before they could continue their own. The idle periods were typical when Petrik and his co-workers were required to wait for a concrete truck to arrive. During these breaks in work, Petrik and his co-workers were expected to clean the site, put away tools, and engage in other miscellaneous duties. Petrik testified that he and his co-workers were friends and would play jokes and tricks on each other. For example, they would fill a lunch box with dirt, put chalk in someone's gloves, or fill a co-worker's bucket with dirt.
[¶3] On August 23, 2012, Petrik and his co-workers had completed all their necessary work and were waiting for a concrete truck to arrive to pour concrete. They took their lunch break and waited at the site. It was a hot day and some of the workers were sitting in an air-conditioned JJ Concrete truck. Petrik, wanting to sit in the truck to cool off, went over to the truck and tricked Kevin Cole into getting out. He told Cole that one of their co-workers on the other side of the job site needed to talk to him. Cole left the truck, after which Petrik took his seat inside the truck.
[¶4] Once seated, Petrik smoked a cigarette and cooled off. After about five minutes, he left the truck to return to the job site. He saw Cole and took off running. Cole ran after Petrik, and, during this short chase, Petrik attempted to jump across a trench, landed awkwardly, and broke his ankle. The trenches were built to hold concrete footings and are typically five feet wide and two or three feet deep, although Petrik testified that this trench was approximately four feet wide. Petrik, realizing the seriousness of his injury, notified his employer of the injury and had Cole take him to the hospital.
[¶5] After the injury, Petrik sought workers' compensation benefits. JJ Concrete and EMC Insurance Company refused to pay for Petrik's medical expenses and refused to provide temporary total disability benefits. They asserted that Petrik's injury did not " arise out of" and was not " in the course of" his employment because Employer specifically prohibited
horseplay by the employees. Also, Petrik's act of running on a dangerous job site in no way furthered the business interests of Employer. In November 2012, Petrik petitioned the Department of Labor for a hearing, which was held on May 22, 2013. Petrik asserted that his brief and insignificant horseplay arose " out of" and was " in the course of" his employment, because horseplay was to be expected when employees have repeated and mandatory lulls in their workday.
[¶6] After the hearing and in consideration of the testimony and post-hearing briefs by the parties, the Department issued a memorandum decision, and findings of fact and conclusions of law. The Department held that Petrik's injury arose " out of" his employment because " [b]ut for his work with Employer he would not be at the job site where he was injured." The Department next examined whether Petrik's injury occurred " in the course of" his employment. It recognized that " in the course of the employment" refers to the time, place, and circumstances of the injury. The Department then applied the four factors adopted by this Court in a case involving horseplay. See Phillips v. John Morrell & Co., 484 N.W.2d 527, 530 (S.D. 1992).
[¶7] On the first factor--the extent and seriousness of the deviation--the Department found that running through a job site with many hazards out in the open is serious conduct. The Department also emphasized that Employer did not expect Petrik to deviate from his job and run through the site and, in fact, Employer prohibited horseplay. The Department then addressed the second factor--the completeness of the deviation--and found that Petrik " completely deviated from abiding by Employer's safety rules, when he ran through the job site." On the third factor, which examines the employer's rules and practices, the Department referred to Employer's employee manual, safety trainings, and employee testimony that running was prohibited. It found that, though practical jokes were accepted " as clean fun at work," horseplay was not. Lastly, the Department found that the nature of concrete work would not involve such horseplay because Petrik's job required heavy lifting and manual labor and " [w]hen the employees have an hour or so to wait, the employees typically save their energy for when they have to expend it working."
[¶8] Based on its review of the four factors, the Department concluded that Petrik's act of running on the job site and attempting to jump over a trench was a substantial deviation from his employment and, therefore, was not " in the course of the employment." It ruled that Employer and Insurer were not responsible for Petrik's medical and indemnity benefits. Petrik appealed this determination to the circuit court. Employer and Insurer appealed the Department's determination that the injury arose " out of" Petrik's employment. The circuit court did not address Employer and Insurer's issue because it ...