Board Releases Willful Misconduct Opinion

By Taylor Skees, staff attorney, Memphis

After oral arguments, the Appeals Board has issued its opinion in Dingus v. Grand Piano.

The crux of the case was whether Gary Dingus’ actions amounted to a willful violation of Grand Piano’s safety rule to remain tethered to his harness while working on a forklift, causing his fall and injury. The Board held that they did not.

Grand Piano argued that Dingus’s failure to offer a valid excuse for violating the safety rule established the element of willfulness. The Board rejected this argument. The Board emphasized, as the Tennessee Supreme Court did before it, that the employee’s conduct needs to be willful, and not merely negligent or even reckless, for the employer’s defense to succeed. The Board also noted that the statute places the burden on the employer to prove the willful violation, and adopting Grand Piano’s assertion would essentially shift the burden to the employee to establish a valid excuse, which is improper under the statute.

Grand Piano adopted a stance akin to res ipsa loquitur, where the fall could not have happened but for Dingus’s failure to use the safety harness. However, as the Board pointed out, Grand Piano did not offer sufficient evidence of a willful violation on Dingus’ part.

Dingus testified that he believed he properly tethered himself before the fall and did not detach himself or otherwise remove his harness before the fall. Grand Piano provided a photograph with a footprint in an area that could only be reached by someone without a properly tethered safety harness. Grand Piano intended this photograph to show that Dingus must have detached himself and stepped in that area before falling. The Board acknowledged this circumstantial evidence but pointed out that Grand Piano presented no evidence as to when or how the footprint was made, or even that it was Dingus who made it.

After the fall, a coworker asked Dingus if he was properly tethered and he said “no, I f’ed up.” The Board concluded that these utterances at most support a finding of negligent or reckless conduct by Dingus, but not a finding of willfulness.

So then, what is willful? Two examples were brought up in oral arguments. In Mitchell v. Fayetteville Public Utilities, the employee admitted to intentionally taking off his safety gloves. In Hawks v. Christian, the employee said he intentionally took off his safety harness. Here, the “I f’ed up” comment could relate to willfulness, but it could just as easily, as the Board points out, relate to recklessness or negligence on Dingus’s part.

In its review of the circumstantial evidence of the footprint above, the implication seems to be that if Grand Piano had evidence showing that Dingus made the footprint while he was moving around at the top of the forklift before falling, that could be enough to show willfulness on his part. He would have had to remove his tether, or known that his harness was not properly tethered, if he did indeed make that footprint before falling. However, as Grand Piano did not have that evidence, we will have to wait for another day to see what evidence, short of an employee admission, actually amounts to a willful employee violation of a safety rule.