Brown v. Arrowhead Tree Service, Inc., C9-82-972.
| Decision Date | 15 April 1983 |
| Docket Number | No. C9-82-972.,C9-82-972. |
| Parties | Steve Mark BROWN, Relator, v. ARROWHEAD TREE SERVICE, INC., et al., Respondents. |
| Court | Minnesota Supreme Court |
Falsani, Balmer & Berglund and Robert C. Falsani, Duluth, for relator.
Arnold W. Larson, Duluth, for respondents.
Considered and decided by the court en banc without oral argument.
By writ of certiorari, Steve Mark Brown, relator-employee, seeks review of a Workers' Compensation Court of Appeals decision denying him recovery for injuries sustained by him when he fell from a tree. The court of appeals found that relator's injuries arose outside the scope of his employment because the act giving rise to the injuries had been expressly prohibited by the employer. We affirm.
On May 7, 1980, the employee was the foreman of a brushing crew for Arrowhead Tree Service, Inc. (Arrowhead). Arrowhead was clearing brush and trees on a powerline right-of-way for its customer, Two Harbors Power & Light Company. Arrowhead's clearance work included removal of dead "danger" trees. Danger trees are trees that are close to powerlines and pose a hazard. The brushing crew often included an employee trained in climbing and topping of large trees, but on this date the crew did not have a trained climber.
Before going to work on May 7, 1980, employee stopped at the office of George Lancour and LeRoy Herrick, both general foremen for Arrowhead. He told them about an unusually large "danger" tree, a dead pine more than 90 feet tall, which had to be removed from the right-of-way. Both general foremen told employee to leave the tree alone, and Lancour said that he would send a climber or topper there in a day or two to remove the tree. After receiving these instructions, employee and his crew drove to the power company's plant at Two Harbors. There employee talked briefly with the power company's line superintendent, during which conversation he told the superintendent about the danger tree. Though employee had not indicated to his general foreman that the tree had to be removed immediately, according to the employee the line superintendent told him he would send a crew out later to help employee.
At the worksite, the brushing crew left the "danger" tree alone and proceeded to clear brush for approximately 300 feet along the powerline behind it. In the past, when a trained climber and topper was not present with the brushing crew, the employee would climb smaller trees, cut branches and throw ropes around about the trees. He had also, on occasion when no trained climber was present, topped smaller trees. Topping is a procedure whereby the worker climbs the tree and saws off sections beginning at the top of the tree.
About 2:30 p.m. on May 7, 1980, four power company employees drove up to the worksite. None of the power company men would climb the tree. Employee testified that one of the power company crew asked him to do so. Ron Ostendorf, the power company's crew foreman, denied that anyone from the power company asked employee to top the tree. Employee never indicated to Ostendorf that he was unqualified to climb the tree. He further stated that it would have been acceptable to the power company if employee had advised him that a trained climber would top the tree in a day or so.
Employee, after borrowing some spurs and a climbing belt from the power company crew, began to ascend the tree. Sometime afterwards, employee decided he had insufficient strength to do the job and commenced descending. During the course of descent, he fell about 20 feet to the ground and sustained a back injury. Employee said that he undertook the job of climbing the tree because he had had a little experience in topping and thought he could do the work. He also testified he thought it was in the best interests of Arrowhead that he do so.
The compensation judge found that employee was performing an act specifically prohibited by the employer when he was injured, that the employee's performance of the act was not reasonably foreseeable by the employer, and that employee's injury sustained during the act accordingly did not arise out of his employment. On appeal, the Workers' Compensation Court of Appeals, with one judge dissenting, affirmed that determination.
Employee argues that his injury arose out of and in the course of his employment because, essentially, he was doing an authorized act in an unauthorized manner. He likewise claims he was attempting to cooperate with and satisfy his employer's customer by trying to remove the tree after the power company's employees came to the worksite to help him do so. He claims that as foreman he had to exercise judgment about whether to climb the tree contrary to the express orders that he had received a few hours earlier. He claims he thought he was acting in furtherance of his employer's interests. In essence, employee Brown is claiming that his violation of his supervisor's prohibition only related to the manner of performing his work duties and, therefore, did not take him out of the scope of his employment. Prentice v. Twin City Wholesale Grocery, 202 Minn. 455, 278 N.W. 895 (1938); Olson v. Robinson Straus & Co., 168 Minn. 114, 210 N.W. 64 (1926).
We cannot concur with employee's contention that at the time of his injury he was performing an authorized act in an unauthorized manner. Employee was not only not authorized to top the tree, but he was specifically prohibited by his...
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