Court of Appeal Rules:
Worker Can Sue Employer for On-Site, Off-Clock Injury
By KENNETH OFGANG, Staff Writer/Appellate Courts
A water park employee injured while using a water slide before clocking in and while the park was closed to the public was acting outside the scope of his employment and was entitled to bring a tort action rather than being limited to workers’ compensation, the Fourth District Court of Appeal ruled Friday.
Div. Two reinstated a $4.4 million judgment in favor of James Mason, who was rendered a paraplegic after he crashed into a dam at the end of a slide in the Lake Dolores water park in Newberry Springs.
A San Bernardino Superior Court judge granted judgment notwithstanding the verdict in favor of the park operator, but the appellate panel said there was sufficient evidence to support the jury’s finding that Mason was not acting as an employee when he ordered a fellow employee to turn on the slide and rode down.
Mason, 23 years old at the time of the late May 1999 accident, was a “pool tech” at the park and normally worked from 6 a.m. to 2 p.m. But on the date in question, there was a jet ski competition at the park, so he was assigned to leave at noon and return at 6 p.m. to clean up after the competition.
Mason testified that he returned about 5:45 p.m., helped another employee take down a flag, then asked his fellow worker to turn on the Doo Wop Super Drop. He said he did so because he liked the slide, the temperature was high, and the slide was always crowded during park hours.
Mason said the “runout lane” appeared to be full when he went down the slide, but that near the bottom he realized he was not stopping as quickly as he should have been. He lifted his neck to see where he was going, he testified, right about the time he hit the dam.
Testimony indicated that an insufficient amount of water pooled in the runout lane at the end of the slide, causing the accident.
Park officials testified that Mason violated park policy, which allowed employees to use the slides only if they were off duty, and only during hours that the park was open to the public. The employee who turned the slide on during non-business hours was also violating policy and was disciplined, they said. The park had an employee manual that warned workers they were not covered by workers’ compensation for injures suffered “during...voluntary participation in any off-duty recreation, social or athletic activity sponsored by the Lake Dolores Resort.” Mason applied for workers’ compensation benefits and was turned down.
Jurors attributed 52 percent of the total fault to the park’s owner, 38 percent to Mason, and 10 percent to non-parties.
Justice Jeffrey King, writing for the Court of Appeal, said it was clear that Mason’s use of the slide was not part of his job.
The justice distinguished Price v. Workers’ Comp. Appeals. Bd. (1984) 37 Cal.3d 559, which held that an early-arriving employee injured by a passing motorist while waiting outside his workplace was entitled to workers’ compensation benefits because his early arrival was a benefit to the employer and that his waiting outside the premises was “reasonably contemplated by his employment.”
King reasoned that Mason’s employer derived no benefit from Mason’s use of the slide—in fact it was a detriment because it cost money to start up the slide, the justice noted—and that his employment did not reasonably contemplate that he would be using the slide during non-operating hours.
The justice also distinguished workers’ compensation cases in which employees injured during recreational softball games involving co-workers were held to be acting within the scope of employment, based on evidence they reasonably believed their employers expected them to participate.
Mason’s case, King said, was similar to Todd v. Workers’ Comp. Appeals Bd. (1988) 198 Cal.App.3d 757, in which a lunch-hour basketball game on the employer’s premises was held to be outside the scope of employment because the employee’s participation was entirely voluntary and only remotely related to work.
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