Sterling v. Mike Brown, Inc., 90-1222
| Decision Date | 23 May 1991 |
| Docket Number | No. 90-1222,90-1222 |
| Citation | 580 So.2d 832 |
| Court | Florida District Court of Appeals |
| Parties | 16 Fla. L. Weekly D1422 Walter STERLING, Sr., as Guardian of Walter Sterling, Jr., Incompetent, Appellant, v. MIKE BROWN, INCORPORATED and Associated Industries of Florida, Property & Casualty Trust, Appellees. |
John N. Buso, John N. Buso, P.A., West Palm Beach, for appellant.
Timothy M. Basquill, Beisler & Beisler, West Palm Beach, for appellees.
The appellant challenges a final order of the judge of compensation claims, denying all compensation benefits to the appellant's son, Walter Sterling, Jr., who received serious injuries in a fall on the business premises of his employer, Mike Brown, Inc. The judge found that Sterling's injuries were not compensable under the Workers' Compensation Law for several reasons, any one of which would be sufficient to support a finding of noncompensability. Because we conclude that the judge could properly have found that Sterling's injuries did not arise out of and in the course of his employment, and because we conclude that the judge could properly have found that Sterling's injuries were occasioned primarily by his intoxication, we affirm.
Sterling was employed as an air conditioning mechanic at Mike Brown, Inc., an air conditioning company. In the afternoon hours of Friday, December 23, 1988, Sterling attended a Christmas party held on the business premises and hosted by the owner, Mike Brown, and one of his competitors and friends, John Cryan. Mike Brown provided the ribs and snacks for the party, Cryan provided a keg of beer, and unknown persons provided soft drinks and one bottle of liquor. The party began at approximately 1:00 p.m. and it was attended by employees, bookkeepers, competitors, friends and business acquaintances of the two businesses. Sterling joined the party at about 1:30. At approximately 3:00, Brown determined that Sterling had consumed too much alcohol to safely drive the company truck home, so he and another employee took Sterling's keys from him. By 7:00 in the evening, most of the guests were leaving, and a fellow employee of Sterling's named Doyle Murphy offered to drive Sterling home and back again to work the next day. Sterling became angry and shoved Murphy in the chest a few times, provoking Murphy to hit him once with a closed fist to his face. Sterling fell backwards, hit his head upon the concrete floor and tragically sustained severe and permanent injuries.
Section 440.09(1), Florida Statutes, provides that compensation benefits will be payable "if the [claimant's] disability or death results from an injury arising out of and in the course of employment." In Brockman v. City of Dania, 428 So.2d 745 (Fla. 1st DCA 1983), we adopted a three-pronged test for determining the circumstances under which recreational or social activities come within the course of one's employment. Approving the analysis used by Professor Larson in his workers' compensation treatise, social activities are deemed to be in the course of employment when any one of the following criteria are met: (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 the 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. Applying this analysis to the facts before her, the judge found that the party did not occur as a regular incident of the employment, that the employer did not expressly or impliedly require his employees' attendance, and that the employer derived no substantial direct benefit from the party. We conclude that these findings are supported by competent substantial evidence presented at the hearing below.
To date, no Florida court has considered the compensability of an employee's injuries at the company Christmas party, and review of the cases referenced in Larson's treatise reveals that courts from other states have reached inconsistent results. See e.g., Torres v. Triangle Handbag Mfg. Co., 13 A.D.2d 559, 211 N.Y.S.2d 992 (N.Y.App.Div.1961); Carpenter v. Ceramic Systems, Inc., 44 A.D.2d 348, 355 N.Y.S.2d 204 (N.Y.App.Div.1974); Anderson v. Custom Caterers, Inc., 279 Ala. 360, 185 So.2d 383 (Ala.1966); and other cases collected in 1A Larson, The Law of Workmen's Compensation Sec. 22.23 (1990). In this case, while there was testimony that Mike Brown had hosted a Christmas party during each of the four to five years that he had been in business, the nature of these previous parties and the scope and extent of Brown's sponsorship of them was not developed in the testimony. There was no testimony from any of the employees that they had come to regard a company Christmas party as a fringe benefit to which they were entitled. Under these circumstances, the judge was not required to find that the party had become "a regular incident of the employment" within the meaning of prong (1) of the Brockman test.
The evidence that Brown expressly or impliedly required his employees' participation or that he made the party part of the services of his employees is even weaker. Mike Brown unequivocally testified that he did not require his employees' attendance at the party and not one of the several employees who testified before the JCC said that he felt required to attend the party. Indeed, there is no evidence that every employee attended the party. Although the party began during normal working hours, the evidence suggests that Brown closed his shop early that day to host it. The employees were not paid for their attendance at the party, there is no evidence that they would have been required to work in lieu of attending it, and no record of the employees' attendance was kept. Cf. Hutchinson v. Dade County School Bd., 561 So.2d 1291 (Fla. 1st DCA 1990) (). Finally, the appellant's argument that Brown knew his employees would feel compelled to attend the party because they often drank together after working hours does not compel a finding contrary to that reached by the judge of compensation claims.
To satisfy prong (3) of the Brockman test, an employee must show that the employer derived a "substantial direct benefit" from the social activity, beyond the intangible value of improvement in employee morale. There is no direct evidence in the record concerning Brown's motivation for hosting the party, but it may reasonably be inferred that the sole purpose was to improve employee morale. None of Brown's customers were invited or attended, he made no attempt to deduct the costs of the party as business expenses, and he did not use the gathering as an opportunity to make speeches, present awards to his employees, or conduct other business. Compare, American Family Pizza v. Taylor, 573 So.2d 956 (Fla. 1st DCA 1991) (); McCoy Restaurants, Inc. v. Griffith, 569 So.2d 764 (Fla. 1st DCA 1990) (); and Bari Italian Food v. Rittger, 527 So.2d 255 (Fla. 1st DCA 1988) (). Upon the evidence presented in the present case, the judge was justified in finding that the employer derived no business benefit from the Christmas party.
Even if the injuries Sterling received at the Christmas party had arisen out of and in the course of his employment at Mike Brown, Inc., he would nevertheless be barred from recovering compensation benefits by virtue of the judge's finding that his injury was occasioned primarily by his intoxication. Section 440.09(3), Florida Statutes. We need not reach Sterling's argument that the evidence was insufficient to trigger the presumption set out in Section 440.09(3) that his injuries were occasioned primarily by his intoxication, because we observe that the judge found that even absent the presumption, Sterling was intoxicated and his injuries were caused by his intoxication. This finding is well-supported by record evidence, particularly the testimony of Clyde Morris who estimated that Sterling drank between thirteen and fifteen eight-ounce cups of beer and an undetermined amount of liquor at the party between the hours of 1:00 and 3:00 or 4:00 p.m. During this period, Sterling ripped the pockets off of his coworkers' shirts, he ripped his own shirt off, and he yelled and became hysterical when his keys were taken from him. Though it appears that later in the evening Sterling stopped drinking, he continued to slur his speech and behave in an emotional manner. The considerable evidence that Sterling was prone to violence when he was intoxicated further supports the finding that he was intoxicated when he picked that fateful fight with Doyle Murphy as the party ended.
We agree with the judge of compensation claims that the employer should not be estopped from asserting the intoxication defense...
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