Mason v. Lake Dolores Group, LLC, E032691

• Decision Date: 09 April 2004
• Docket Number: No. E032691,E032691
• Citation: 11 Cal.Rptr.3d 914,117 Cal.App.4th 822
• Court: California Court of Appeals Court of Appeals
• Parties: James MASON, Plaintiff and Appellant, v. LAKE DOLORES GROUP, LLC, Defendant and Respondent.

11 Cal.Rptr.3d 914

117 Cal.App.4th 822

James MASON, Plaintiff and Appellant, v. LAKE DOLORES GROUP, LLC, Defendant and Respondent.

No. E032691

Court of Appeal, Fourth District, Division 2

April 9, 2004

[11 Cal.Rptr.3d 917]

[117 Cal.App.4th 825]

Law Offices of Richard Devirian, Richard C. Devirian, Wilmington; Esner & Chang, Stuart B. Esner, Los Angeles and Andrew N. Chang, Walnut Creek, for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Steven R. Parminter, Otis D. Wright, Los Angeles; Borton, Petrini & Conron, Christopher L. Cockrell and Allen P. Sanders, San Bernardino, for Defendant and Respondent.

OPINION

KING, J.

INTRODUCTION

Plaintiff and appellant, James Mason (Mason), was rendered a paraplegic after he rode down a water slide and crashed into the dam at the end of the slide. The accident occurred at a water park owned and operated by Mason's employer, defendant and respondent, Lake Dolores Group, LLC (LDG). Shortly before the accident, Mason reported to work, but did not clock in. At the time of the accident, the park was closed and the water slide was turned off, but Mason instructed another employee to turn the water slide on. An insufficient amount of water pooled in the "runout lane" at the end of the slide, causing the accident and Mason's injuries.

Mason sued LDG, alleging negligence. A jury found LDG negligent, and apportioned fault 52 percent to LDG, 38 percent to Mason, and 10 percent to unnamed "others." The jury also found that Mason was not acting in the course and scope of his employment when he was injured. Thus, the jury rejected LDG's claim that the workers' compensation exclusive remedy rule barred Mason's negligence action. A judgment was entered in favor of Mason and against LDG. After offsets, the amount of the judgment was $4,397,850.

LDG moved for a judgment notwithstanding the verdict (JNOV) and, alternatively, a new trial, on the ground Mason's negligence action was barred by the workers' compensation exclusive remedy rule, LDG's 14th affirmative defense. (Lab Code, § 3602, subd. (a).)¹ The trial court granted LDG's motions solely on this ground, and entered judgment in favor of LDG.

In a statement of decision, the trial court noted that the pertinent facts were not in dispute. It also noted that the facts were "quite similar" to those in State Comp. Ins. Fund v. Workmen's Comp. App. Bd. (Cardoza) (1967) 67 Cal.2d 925, 64 Cal.Rptr. 323, 434 P.2d 619 (State Comp.). There, the court held that workers' compensation benefits were payable to an employee under the "personal comfort" doctrine. (Id. at p. 928, 64 Cal.Rptr. 323, 434 P.2d 619.) Based on State Comp., the trial court ruled that Mason's negligence action was barred by the workers' compensation exclusive remedy rule; therefore, it entered the JNOV in favor of LDG.

Mason appeals from the JNOV and alternative order granting a new trial. He contends that in granting the motions, the trial court erroneously concluded that his negligence action against LDG was barred by the workers' compensation exclusive remedy rule. (§ 3602, subd. (a).) We agree.

We conclude that substantial evidence supports the jury's finding that Mason was not acting in the course of his employment when he was injured. We therefore conclude that the workers' compensation exclusive remedy rule did not bar Mason's negligence action against LDG. (§ 3602, subd. (c).) More specifically, Mason was not entitled to workers' compensation benefits for his injuries, because his injuries did not arise out of nor occur in the course of his employment. (§ 3600, subd. (a).) We therefore reverse the JNOV and alternative order granting a new trial, and remand the matter with directions to reinstate the judgment previously entered in favor of Mason.

FACTS AND PROCEDURAL HISTORY

Mason began working for LDG shortly after the park opened in 1998. The park opened at 10:00 a.m. Mason usually worked from 6:00 a.m. to 2:00 p.m as a "pool tech" for the park's water rides. His duties included cleaning out leaves and grates, checking chlorine levels, turning on pumps, and similar tasks. He also performed general maintenance work, including raking leaves, disposing of garbage, cleaning restrooms, and cement work.

The accident occurred on May 29, 1999, when Mason was 23 years old. That day, Mason reported to work at 6:00 a.m. and was told he would be moving chairs and tables for a jet ski competition. He performed these tasks until 12:00 noon. He was then told he could go home and return to work at 6:00 p.m. to clean up after the jet ski competition and complete his shift. Mason went home, and returned about 5:45 p.m. with another employee, Michael Smith. At that time, the park was closed.

As Mason and Michael Smith entered the park, the person in charge of security asked them to help others take down a flag. They did so, although they had not clocked in. It took seven to nine minutes to take down the flag. Mason then went to the Doo Wop Super Drop water slide, and asked another employee, Raymond Smith, to turn the slide on. Raymond Smith did so. The slide had been turned off for about 60 minutes. Mason had still not clocked in.

Mason was wearing a swimming suit under his clothes. At the bottom of the stairs to the slide, Mason talked to Michael Smith and another employee as he removed his clothes, and told them he would meet them at the bottom of the slide to get his clothes. No other employees joined Mason to ride the slide. There were no attendants at the top or bottom of the slide. It was 85 to 95 degrees outside.

Mason climbed the 50 or 60 steps to the top of the slide. From there, he waited a minute or two to watch the water come out of the Doo Wop Super Drop and two other slides that operated from the same pump and platform. He saw water in the runout lane about 276 feet below, and said the runout lane appeared to be full. He believed a sufficient amount of time had passed to allow the runout lane to fill with water, and he went down the slide. Near the bottom of the slide, he realized he was not stopping as quickly as he should. He lifted his neck to see where he was going, and hit the dam at the end of the slide. Afterward, he remembered saying something like his legs didn't work.

Michael Smith said he saw Mason "fly down the slide." He said, "You could hear his hands trying to stop himself, like skidding ... and then ... his feet barely made it over the lip and his tailbone just mashed it, and he flew in the air and landed right on his back." Mason said he went down the Doo Wop Super Drop because "[i]t was the fastest and it was my favorite." He also said he used the slide because it was hot, the slide was fun, and the slide was always crowded during park hours.

The park's general manager, Grant Lloyd (Lloyd), saw Mason lying on the concrete and thought it was a joke because "it was unexpected that anyone would be riding the ride." Another employee who was present when Mason went down the slide thought Mason's request to turn the slide on was unusual because "[u]sually employees didn't ride the slides especially without upper management permission...."

Mason did not have permission from any supervisor to go down the slide. Raymond Smith was either suspended or fired for turning the slide on for Mason. According to one of the park's managers, Terry Christensen (Christensen), "That was policy. He [Raymond Smith] was gone."

Christensen also testified that no one was to use the slides if they were turned off for the day. It was park policy that employees could use the slides only if they were off duty and the slides were open to the public. Christensen testified, "It costs a lot of money to turn on a slide. Those pumps burn up a lot of electricity. You don't turn them on to play with them." He said, "It would be foolish to turn a ride on for one turn to take a ride down the hill."

The park's director of operations, Amy Alexander, testified that pool technicians, including Mason, did not have authority to turn the slides on after the park was closed. Instead, pool technicians were authorized to turn on the slides before the park opened and turn them off when the park closed.

The employee manual said that employees were to immediately report any unsafe conditions to a supervisor. Mason testified that if he noticed a safety problem with a slide, including an interruption in the flow of water on a slide, he would call his supervisor. Lloyd testified that pool technicians were encouraged to ride or "test" the slides, before the park opened, if they saw a "rooster tail" or similar problem in the flow of water on a slide.

Mason and LDG presented conflicting testimony on whether Mason's injury arose out of and occurred in the course of his employment, within the meaning of the workers' compensation laws. (§ 3600, subd. (a).) The park's employee manual stated, "`Neither Lake Dolores nor the insurance carrier will be liable for the payment of Worker's Compensation benefits for injuries that occur during an employee's voluntary participation in any off-duty recreation, social or athletic activity sponsored by the Lake Dolores Resort."

Mason applied for workers' compensation benefits. He signed an application stating that his injuries occurred while he was "testing" the water slide. The application was denied, and Mason did not further pursue the matter. At trial, Mason denied he was testing the slide when he was injured, and denied he told anyone he was testing the slide. He said he did not become aware of the wording on the application until about two months before trial. He also said he did not perform any pool technician work on the day he was injured.

Before trial, LDG moved for summary judgment on the ground Mason's negligence action was barred by the workers' compensation exclusive remedy rule. Mason opposed the motion on the ground there were triable issues of fact concerning whether he was acting within the course...