Wolters v. Industrial Accident Commission

223 Cal. App. 2d 136, 35 Cal. Rptr. 549, 1963 Cal. App. LEXIS 1508
CourtCalifornia Court of Appeal
DecidedDecember 6, 1963
DocketCiv. No. 10635
StatusPublished
Cited by5 cases

This text of 223 Cal. App. 2d 136 (Wolters v. Industrial Accident Commission) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolters v. Industrial Accident Commission, 223 Cal. App. 2d 136, 35 Cal. Rptr. 549, 1963 Cal. App. LEXIS 1508 (Cal. Ct. App. 1963).

Opinion

FRIEDMAN, J.

Petitioner Henry J. Wolters is a painting contractor. Two experienced painters employed by him, Charles McGee and Walter Van Heukelem, were injured by the collapse of a scaffold. The employees applied to the In[139]*139¿historial Accident Commission for an augmented award of compensation, charging serious and wilful misconduct of their employer.1 The commission granted the awards and Wolters seeks review in this proceeding.

The accident occurred while McGee and Van Heukelem were painting the side of a house. On the morning of the accident the two employees met Wolters and Elden Edens, his foreman, at the house to get the job started. The house was two stories high with a gable above the second story. McGee and Van Heukelem were to start by painting one side of the house, which was a gable end. That side of the house rose to a peak, which had a maximum height of 31 feet. A concrete driveway ran alongside. The employees were provided with two 20-foot extension ladders and a scaffold plank, which was 14 inches wide and 18 feet long. A triangular-shaped metal device, called a ladder jack, hooked to each ladder and supported the scaffold plank at each end. This kind of “ladder jack scaffolding” is extensively used in the painting trade. The ladders were placed against the house at an angle, their bases resting on the driveway approximately 6 feet out from the foundation of the house. Edens and Van Heukelem assembled the scaffolding. Edens hung on the jacks and jumped on the plank to make sure it was safe. McGee and Van Heukelem also tested the scaffold by jumping or hanging on it. Wolters and Edens then left, leaving McGee in charge.

McGee and Van Heukelem began painting the peak of the gable end. At that time, the commission found, the scaffold was at a height of 24 feet 2 inches. While the men were painting at that height one of the ladder jacks collapsed. One end of the scaffold plank dropped, and McGee and Van Heukelem fell to the concrete driveway, suffering injuries. [140]*140Precise cause of the collapse of the ladder jack was not established.

At the time of the accident Construction Safety Order No. 1654 of the Department of Industrial Relations prohibited use of ladder jack scaffolding at a height over 18 feet and required safety lines where the working platform was more than 10 feet from the ground.2

The commission found first, that the injury was proximately caused by Wolters’ serious and wilful misconduct in knowingly placing his employees in a position of danger without taking precautions; and second, that the injury was also proximately caused by the serious and wilful misconduct of the employer in violating subdivision (a) of Safety Order No. 1654, which was known to Wolters and his managing representative, Edens, and which was violated by installing the platform on ladder jacks 24 feet, 2 inches, above the ground.3 We consider first the issue of safety order violation.

[141]*141Petitioner assails the findings that Wolters and Edens were aware of the 18-foot height limitation in the safety order and that they violated it by installing the scaffold at a height of 24 feet. While a reading of the record discloses some conflict in the evidence, there is ample evidence to support these declarations of fact. Consequently we have no authority to disturb them.

Petitioner points out that there was no reckless and wilful violation of the safety order; rather, that reasonable safety precautions were taken by testing the security of the platform before the employees ventured out on it. Petitioner argues that such conduct is far above the level of serious and wilful misconduct as judicially defined in such cases as Mercer-Fraser Co. v. Industrial Acc. Com., 40 Cal.2d 102 [251 P.2d 955],

Mercer-Fraser, decided in 1953, is the leading ease on serious and wilful misconduct in California workmen’s compensation law. As subsequently described by the Supreme Court in Keeley v. Industrial Acc. Com., 55 Cal.2d 261, 267 [10 Cal.Rptr. 636, 359 P.2d 34], its essential holding is: serious and wilful misconduct cannot be found from the existence of a danger which the employer should have known but did not; rather it requires a danger to which he has put his mind; an employer who intentionally places his employee in a position of known and obvious danger without taking any precautions for his safety may be guilty of serious and wilful misconduct.

Prior to the Mercer-Fraser decision, the role of safety statute and safety order violations in serious and wilful misconduct cases was delineated as follows: "It is true that not every violation of a statute is serious and wilful misconduct.... The employer is charged with knowledge of the statute.... ‘Where there is a deliberate breach of a law ..., which is framed in the interests of the working man, it will be held that such a breach ... amounts to serious misconduct. ’ ’ ’ (Parkhurst v. Industrial Acc. Com., 20 Cal.2d 826, 830-831 [129 P.2d 113]; see also Bethlehem Steel Co. v. Industrial Acc. Com., 23 Cal.2d 659, 662-663 [145 P.2d 583].) Neither Mercer-Fraser nor any of the decisions following it involved safety statutes or regulations. Hence impact of the Mercer-[142]*142Fraser doctrine in safety order cases is open to some speculation. (See Comment, Serious and Wilful Misconduct Under the California Workmen’s Compensation Act, 42 Cal.L.Rev. 852, 858-861.) As we noted in Dowden v. Industrial Acc. Com. (ante, at p. 135 [35 Cal.Rptr. 541], the Mercer-Fraser case expresses the idea that wilful misconduct requires intentional misconduct, possibly implying a need for actual rather than imputed knowledge of the safety regulation. There seems to be no reason, so far as the decisions are concerned, why the concept of serious and wilful misconduct in safety order cases should be any different from that in situations not involving safety orders.

A significant feature of the present case is the fact that the employer took some precautions. Although he is charged with disregard of a known safety regulation, the employer did take safety precautions by subjecting the ladder jacks and working platform to tests of strength and security before permitting use by his employees. In cases not involving safety order violations, reasonable precautions negative a finding of serious and wilful misconduct although, from the vantage of hindsight, the precautions turn out to be inadequate. (Hawaiian Pineapple Co. v. Industrial Acc. Com., 40 Cal.2d 656, 663-664 [255 P.2d 431].) Were it not for statutory intervention, the presence of these two paradoxical elements—violation of a known safety regulation plus the taking of safety precautions—would provoke some difficulty.

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Related

Rogers Materials Co. v. Industrial Accident Commission
408 P.2d 737 (California Supreme Court, 1965)
Grason Electric Co. v. Industrial Accident Commission
238 Cal. App. 2d 46 (California Court of Appeal, 1965)
Dowden v. Industrial Accident Commission
223 Cal. App. 2d 124 (California Court of Appeal, 1963)

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Bluebook (online)
223 Cal. App. 2d 136, 35 Cal. Rptr. 549, 1963 Cal. App. LEXIS 1508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolters-v-industrial-accident-commission-calctapp-1963.