Bender v. Dakota Resorts Management Group, Inc.

• Decision Date: 29 June 2005
• Docket Number: No. 23441,23441
• Citation: Bender v. Dakota Resorts Management Group, Inc., 700 N.W.2d 739, 2005 SD 81 (S.D. 2005)
• Parties: ROBERT BENDER, Plaintiff and Appellant, v. DAKOTA RESORTS MANAGEMENT GROUP, INC., d/b/a DEER MOUNTAIN SKI AREA, Defendant and Appellee.
• Court: South Dakota Supreme Court

2005 SD 81

700 NW 2d 739

ROBERT BENDER, Plaintiff and Appellant, v. DAKOTA RESORTS MANAGEMENT GROUP, INC., d/b/a DEER MOUNTAIN SKI AREA, Defendant and Appellee.

No. 23441

Supreme Court of South Dakota.

Considered on Briefs on May 23, 2005

Opinion Filed June 29, 2005

MICHAEL J. SIMPSON of Julius & Simpson, LLP, Rapid City, South Dakota, Attorneys for plaintiff and appellant.

MATTHEW J. KINNEY, Kinney Law Office, Spearfish, South Dakota, Attorney for defendant and appellee.

SABERS, Justice.

[¶ 1.] Robert Bender (Bender) worked as a ski lift operator at Deer Mountain Ski Area, located near Lead, South Dakota. Bender was injured while skiing during one of his breaks and sought compensation for his injuries from his employer. The circuit court found in favor of the employer, holding that the skiing injury sustained by Bender did not arise out of and in the course of his employment. Bender appeals and we reverse and remand.

Facts

[¶ 2.] Robert Bender was employed as a ski lift operator for Dakota Resorts Management Group, Inc., doing business as Deer Mountain Ski Area (Deer Mountain). Deer Mountain's policy was that lift operators would receive one fifteen minute break in the morning, a half hour for lunch, and a fifteen minute break in the afternoon. Because lift operators work outside on the ski slope, they were not required to "clock out" during their breaks. It was common for lift operators, as well as other employees, to take ski runs on their breaks.¹

[¶ 3.] On December 14, 2002, Bender asked his supervisor, Matthew Eddy (Eddy), if he could take a ski run during his afternoon break. Eddy consented and temporarily took over his duties while Bender completed the ski run. As Bender skied down the hill, he saw a skier ahead of him fall. As Bender approached the fallen skier, he turned his head to ask if he was alright. When he did so, Bender hit a dip in the terrain and fell, injuring his shoulder.

[¶ 4.] At the time of the accident, Deer Mountain did not have workers' compensation insurance so Bender brought this action under SDCL 62-3-11.² The circuit court found in favor of the employer, holding that the skiing injury sustained by Bender did not arise out of and in the course of his employment. Bender appeals, claiming his injury arose out of and in the course of employment.

Standard of Review

[¶ 5.] Our standard of review on factual issues is clearly erroneous, meaning we will reverse only if we are "definitely and firmly convinced a mistake has been committed." Mudlin v. Hills Materials Co., 2005 SD 64, ¶5, ___ NW2d ___ (citing Norton v. Deuel School District, 2004 SD 6, ¶5, 674 NW2d 518, 520). However, "we review findings based on deposition testimony and documentary evidence under a de novo standard of review." Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶7, 619 NW2d 260, 262 (quoting Wagaman v. Sioux Falls Construction, 1998 SD 27, ¶12, 576 NW2d 237, 240). Questions of law are also reviewed under the de novo standard. Mudlin, 2005 SD 64, ¶5, ___ NW2d at ___ (citing Norton, 2004 SD 6, ¶5, 674 NW2d at 520).

[¶ 6.]Whether Bender's injury arose out of and in the course of employment.

[¶ 7. ] To recover under workers' compensation, a claimant must prove by a preponderance of the evidence that he sustained an injury "arising out of and in the course of the employment." SDCL 62-1-1(7); Mudlin, 2005 SD 64, ¶7, ___ NW2d at ___. The claimant must prove that "the employment or employment-related activities are a major contributing cause of the condition complained of." SDCL 62-1-1(7)(a).

[¶ 8.] We construe the phrase "arising out of and in the course of employment" liberally. Mudlin, 2005 SD 64, ¶8, ___ NW2d at ___. Therefore, application of the workers' compensation statutes is not limited solely to the times when the employee is engaged in the work that he was hired to perform. Id.

[¶ 9.] Both factors of the analysis, "arising out of" employment and "in the course of employment," must be present in all claims for workers' compensation. Id. ¶9. However, while each factor must be analyzed independently, they are part of the general inquiry of whether the injury or condition complained of is connected to the employment. Id. Therefore, the factors are prone to some interplay and "deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other." Id. (quoting 2 Arthur Larson, Larson's Workers' Compensation Law, § 29, 29-1 (1999)).

[¶ 10.] In order for an injury to "arise out of" the employment, the employee must show that there is a "causal connection between the injury and the employment." Id. ¶11 (quoting Canal Insurance Co. v. Abraham, 1999 SD 90, ¶12, 598 NW2d 512, 516). The employment need not be the direct or the proximate cause of the injury, rather it is sufficient if "the accident had its origin in the hazard to which the employment exposed the employee while doing [her] work." Id. (quoting Canal Insurance Co., 1999 SD 90, ¶12, 598 NW2d at 516). The injury "arose out of" the employment if: 1) the employment contributes to causing the injury; 2) the activity is one in which the employee might reasonably engage; or 3) the activity brings about the disability upon which compensation is based. Id. (citing Grauel, 2000 SD 145, ¶12, 619 NW2d at 263).

[¶ 11.] "This Court has made it clear that the words `in the course of employment' refer to the time, place and circumstances of the injury." Bearshield v. City of Gregory, 278 NW2d 166, 168 (SD 1979). An employee is considered within his course of employment "if he is doing something that is either naturally or incidentally related to his employment or which he is either expressly or impliedly authorized to do by the contract or nature of the employment." Id. See also Mudlin, 2005 SD 64, ¶15, ___ NW2d at ___; Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, ¶21, 607 NW2d 596, 603.

[¶ 12.] It has also been recognized that when an employee is injured while engaging in recreational or social activities on the employer's premises on a scheduled break, the injury arises out of and in the course of employment as long as the activity is a "regular incident of the employment." 2 Arthur Larson, Larson's Workers' Compensation Law, § 22.01, 22-2 (1999). Professor Larson's treatise, which is often cited by this Court in workers' compensation cases,³ provides:

Recreational or social activities are within the course of employment when

(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or

(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of employment; or

(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

Id. (emphasis added). According to Larson's treatise, if any of these three links to employment are met, compensation should be awarded. Id. at 22-7 to 22-8.

[¶ 13.] Professor Larson defines "regular incident of the employment" when "the activity is an accepted and normal one." Id. at 22-6. The recreational activity also "must be shown to have achieved some standing as a custom or practice either in the industry generally or in this particular place" in order for the activity to become an incident of employment. Id. at 22-8. Professor Larson further explains that:

Put negatively, this means that the course of employment does not embrace every spontaneous or unprecedented frolic that might be undertaken on the premises.

. . .

At what point the innovation becomes a fixture of the employment is the kind of question that does not lend itself to a precise formula; it has been suggested that it should be at least long enough for a reasonable employer to become aware of it.

Id.

[¶ 14.] Although we have not previously addressed a case involving recreational or social activities occurring on the premises during a scheduled break, in Piper v. Neighborhood Youth Corps, we held that "an injury may be compensable under the Workmen's Compensation Law even though it occurs during a lunch hour period." 90 SD 443, 446, 241 NW2d 868, 869 (1976). In that case, an employee fell asleep on a beached raft during his lunch break. The raft drifted out into the lake and the employee drowned attempting to swim back to shore. We found that even though the employer had warned the employee not to go swimming, the employer might reasonably expect employees to rest and relax on the raft. Id. at 447, 241 NW2d at 870.

[¶ 15.] At least one other jurisdiction has addressed a situation factually similar to that presented here. In Grather v. Gables Inn, LTD, the claimant was employed as a "ski bum" and was injured while skiing. 751 A2d 762, 764 (Vt 2000). As a "ski bum," the claimant's main duties were to serve breakfast to the employer's customers in the mornings and dinner in the late afternoons. The job was designed to leave time free to ski between late morning and late afternoon. The "ski bum" also received a ski pass as part of the compensation package. Id. Relying in part on § 22.01(3) of Professor Larson's treatise, the Vermont Supreme Court held that since the employer was providing a recreational opportunity (i.e., skiing) as an inducement to attract employees, the employer received "a benefit sufficient to bring the claimant's skiing within the course of his employment." Id. at 764-65.

[¶ 16.] Here, Deer Mountain was in the business of providing winter recreational opportunities to its customers, namely snow skiing and snowboarding. One of the benefits or perks afforded to Deer Mountain employees was the opportunity to partake in these recreational activities. Employees received free season passes, oftentimes stored their ski and snowboard equipment at the facility, and...