Posted on by Stephen Tuck

Whigham v Jackson Dawson Communic’ns (2014) H&FLR 2014-53

Stephen Whigham v Jackson Dawson Communications and The Hartford (2014) H&FLR 2014-53

Supreme Court of South Carolina

27 August 2014

Coram: Toal CJ, Hearn, Kittredge and Pleicones JJ, and Moore AJ

Appearing for the Plaintiff: Douglas A Churdar (of Churdar Law Firm)
Appearing for the Defendants: Benjamin M Renfrow and Wesley J Shull (of Willson Jones Carter & Baxley PA).

Catchwords: South Carolina – workers compensation – team building event – kickball – injury – compensability

Facts: The plaintiff was employed by the defendant (Jackson Dawson Communications) as Director of Creative Solutions.  The employer attached value to holding team building events and the plaintiff proposed holding a company kickball game.  The company endorsed the proposal and instructed him to proceed with it, including spending a certain amount of the company’s funds.  During the kickball game which ultimately took place, the plaintiff jumped and landed awkwardly, suffering a severe break of his right leg.

Section 42-1-160(A) of the South Carolina Code provides that for an injury to be compensable, it must arise “out of and in the course of employment”.

The plaintiff lodged a claim for workers compensation which was rejected by a single member of the Workers’ Compensation Commission and by the full Commission on the grounds that the injury had not arisen out of or in the course of employment.  The plaintiff’s appeal to the Court of Appeals was dismissed: Whigham v Jackson Dawson Communications, (S.C. Ct. App., Pieper, Konduros and Geathers JJ, 11 April 2012, unreported).  The plaintiff appealed to the South Carolina Supreme Court.

Held: per Toal CJ, Hearn J and Moore AJ, allowing the appeal, that –

1. In assessing whether a work injury is compensable, the Workers’ Compensation Act is liberally construed towards providing coverage.  Any reasonable doubt in the Act’s interpretation should be construed in favour of coverage*.

Shealy v Aiken County, 341 SC 448, 535 SE.2d 438 (2000), approved.

2. An injury arises out of employment where a rational mind would identify a causal relationship between the injury and the conditions under which the work was performed.

Crisp v SouthCo Inc, 401 SC 627, 738 SE.2d 835 (2013), approved.

3. To assess whether a recreational or social activity fell within the course of employment, the court considers whether it falls within the following factors –

(a) It occurred on the employers premises during a lunch or recreational period as a regular incident of employment.
(b) The employer made the activity part of the employee’s services or otherwise expressly or impliedly required participation.
(c) The employer derived a substantial direct benefit from the activity beyond the intangible value of improvement in employee health or morale.

Leopard v Blackman-Uhler, 318 SC 369, 458 SE.2d 41 (1995), followed.

4. In this case, the plaintiff was impliedly required to attend the game which he had organised and it became part of his services.  As such it arose out of the course of employment.

Per Kittredge and Pleicones JJ (dissenting), that there was insufficient evidence to warrant overturning the decisions of the courts below.

Judgment

The Court’s judgment is available here.

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* This may be seen as a norm of compensation statutes: cf Hegedis v Carlton & United Breweries (2000) 4 VR 296 at ¶32.

Posted on by Stephen Tuck

Cole v Boy Scouts of America (2011) H&FLR 2014-24

Karen Cole & Ors v Boy Scouts of America & Ors (2011) H&FLR 2014-24

Supreme Court of South Carolina

5 December 2011

Coram: Toal CJ, Beatty, Kittredge, Hearn and Pleicones JJ.

Appearing for the Appellant: Arthur K Aiken (of Aiken & Hightower PA)
Appearing for the Respondent: John M Grantland, Alice P Adams and Ashley B Stratton (of Murphy & Grantland)

Catchwords: South Carolina – Cub Scout function – softball – unscored – collision between players – contact sport – assumption of risk – nature of sport – breach of rules – recklessness

Facts: At a Cub Scout function, David Cole Sr and David Cole Jr participated in an unscored father-son softball game.  Cole Sr was playing in the catcher’s position and, during a play, moved to stand on top of home plate.  A father on the opposing team – Wagner – ran towards home plate in an attempt to score.  He collided with Cole Sr, causing significant injuries.  The incident was witnessed by Cole Jr.

Cole Sr, his wife Karen Cole and Cole Jr brought proceedings against (among others) Wagner and the organisers of the game.  Wagner sought summary judgment which the trial court granted.  The plaintiffs appealed.

Held: Dismissing the appeal, per Toal CJ, Beatty, Kittredge and Hearn JJ –

1.  A person who chooses to take part in a contact sport (which includes softball) assumes the risks inherent in the sport, and a defendant is not obliged to protect the person from those risks.  The key factor is the nature of the sport involved, and not whether the sport is professional or amateur, organised or unorganised, or supervised or unsupervised.

Hurst v East Coast Hockey League, 673 SE.2d 560 (SC 2006); Marchetti v Kalish, 559 NE.2d 699 (Ohio 1990); Keller v Mols, 509 NE.2d 584 (Ill. App. Ct. 1994), followed.

2.  Although Wagner may have breached the rules of softball by running into the catcher, the risk of a breach of the rules of a game is one of the risks taken when engaging in a sport.  In addition, some recklessness by players as to the risk of injury to others is inherent to contact sports.  However, intentional conduct causing injury, or alternatively very reckless conduct, is or may be outside the scope of the game.

Landrum v Gonzales, 629 NE.2d 710 (Ill. App. Ct. 1994), considered.

3.  Semble, that the standard of care is not affected by the expectations of the participants of the game.

Landrum v Gonzales, 629 NE.2d 710 (Ill. App. Ct. 1994), approved.

4.  Obiter, that a player can still owe a duty of care to a spectator of a game, and this duty will be greater than that owed to another player.

Per Pleicones J, that Wagner owed no duty to Cole based on the doctrine of implied primary assumption of risk.  However, quaere whether softball is a contact sport.

Judgment

The Court’s judgment is available here.