Cardello v. Mt. Hermon Ski Area, Inc.
| Decision Date | 22 April 1977 |
| Citation | 372 A.2d 579 |
| Parties | Joseph A. CARDELLO v. MT. HERMON SKI AREA, INC. and/or Travelers Insurance Company. |
| Court | Maine Supreme Court |
Allan Woodcock, Jr., Bangor, for plaintiff.
Rudman, Rudman & Carter by John M. Wallach, Richard J. Relyea, III, Bangor, for defendants.
Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.
The plaintiff was denied compensation by the Industrial Accident Commission for injuries received 'while working as a National Ski Patroller' because it found no employer-employee relationship existed between the plaintiff and defendant. The accuracy of this conclusion forms the sole basis of the plaintiff's appeal, which we deny.
The facts, as found by the Commission, are these:
'The Commission finds that Joseph A. Cardello, the petitioner, was a member of the National Ski Patrol on January 16, 1975. Each member pays dues in the amount of $11.00 per year. Members do not receive any compensation from the National Ski Patrol. The National Ski Patrol is a volunteer professional organization. The National Ski Patrol provides a service to the ski area operator-To patrol the area for prevention of accidents and to render first aid treatment to skiers who have sustained personal injuries on the slopes. Each area has a patrol leader who is responsible for the recruiting, hiring, training and scheduling of patrollers. The ski patrol leader is responsible to the assistant regional director or regional director. To be eligible, members must complete successfully, a first aid course given by the American Red Cross. In addition, an annual 'mountain refresher' program is supervised by the patrol leader at each ski area.
The Commission also finds that petitioner was a ski patroller at the Mt. Hermon Ski area on January 16, 1975. While so patrolling Mr. Cardello sustained a personal injury to his right knee requiring surgery. The patrol leader was James Vickers. Petitioner was scheduled to patrol on Thursday nights and Saturday nights. Each member of the patroller's family would receive a season pass to ski at the reduced price of $10.00. Patrollers also received free liquid refreshments-coffee, soda or hot chocolate.'
Plaintiff's claim for Workmen's Compensation benefits was rejected by the Commission because a) 'there was no contract of hire since there was no intention that petitioner be paid,' and b) 'petitioner had no obligation to submit to the control of' the defendant.
Whether plaintiff received sufficient consideration for his services to undergird a contract of employment is a question we need not answer. 1 For the purposes of this opinion, we assume that plaintiff was not a 'purely gratuitous worker.' Harlow v. Agway, Inc., 327 A.2d 856, 859 (Me.1974).
Since an employment contract will not be found to exist unless the employer retains the right to control the activities of an employee while performing the duties of his employment, we will direct our attention to the Commission's ruling on this issue.
The scope of appellate review of the Commission's findings of fact is limited. We have 'no authority to deviate from findings of fact made by a Commissioner which are supported by competent evidence.'
Harlow v. Agway, Inc., 327 A.2d at 858. See also Ross v. Oxford Paper Co., 363 A.2d 712, 716 (Me.1976); Overlock v. Eastern Fine Paper, Inc., 314 A.2d 56, 60 (Me.1974).
However, we may examine the record to determine if the Commission, in dealing with established facts, misapplied the appropriate legal principles. Crosby v. Grandview Nursing Home, 290 A.2d 375, 379 (Me.1972).
The plaintiff must assume the burden of proving 1) his employment by the defendant, and 2) that his personal injuries arose out of and occurred during the course of his employment. 39 M.R.S.A. § 51. See also Madore v. Liberty National Bank, 289 A.2d 36, 38 (Me.1972).
In...
To continue reading
Request your trial
-
Comeau v. Maine Coastal Services
...892, 893 (1972). The burden of producing proof sufficient to satisfy these requirements is on the employee. Cardello v. Mt. Hermon Ski Area, Inc., Me., 372 A.2d 579, 581 (1977); Wolfe, 290 A.2d at 893. These requirements are distinct legal criteria. Gilbert v. Maheux, Me., 391 A.2d 1203, 12......
-
Timberlake v. Frigon & Frigon
...drawn from established facts; where facts are undisputed Law Court is not bound by Commissioner's conclusion); Cardello v. Mt. Hermon Ski Area, Inc., Me., 372 A.2d 579, 581 (1977) (court examines record to see if Commissioner misapplied legal principles of employment status to established f......
-
Billings v. Ralph E. Curtis & Son, Inc.
...and thereby clearly erroneous. See, e. g., McQuade v. Vahlsing, Inc., Me., 377 A.2d 469, 471 (1977); Cardello v. Mt. Hermon Ski Area, Inc., Me., 372 A.2d 579, 580-81 (1977); 39 M.R.S. § 99. Whether the WCC has misapplied the controlling law to these findings, however, is a matter on which t......
-
Rioux v. Franklin County Memorial Hospital
...supported by competent evidence. McQuade v. Vahlsing, Inc., Me., 377 A.2d 469, 471 (1977). See also, e. g., Cardello v. Mt. Hermon Ski Area, Inc., Me., 372 A.2d 579, 580-81 (1977); Ross v. Oxford Paper Co., Me., 363 A.2d 712, 716 (1976). Since the question presented here involves a mixed is......