State News : South Dakota

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South Dakota




Supreme Court of South Dakota

Jason Petrik v. J.J. Concrete, Inc. and EMC Insurance Company, 2015 S.D. 39

Michael Bornitz and Joseph Dylla/Charles Larson

Issues: (1) Whether the Circuit Court erred in holding that Petrik’s injury "arose out of" his employment but did not occur "in the course of" his employment?


Jason Petrik ("Claimant") was an employee J.J. Concrete ("Employer") when he was injured running away from a co-worker on a job-site. The Department ruled that Claimant’s injury "arose out of" his employment, but did not occur "in the course of" the employment, thereby denying benefits. The Circuit Court approved the Department’s holding, and Claimant appealed to the Supreme Court who reversed in part, affirmed in part, and remanded to the Department to establish benefits.

Claimant was a concrete laborer with Employer since 2011. His employment sometimes involved idle times when he and his co-workers were required to sit and wait for other work to be completed before they could continue with their own. During the idle times, the testimony established that Claimant and his co-workers were expected to clean up the job-site, put away tools, and other like-activities. Testimony also established that Petrik and his co-workers liked to play jokes on each other during the work day. On the date of injury it was very hot outside and Petrik tricked a co-worker into getting out of the air-conditioned truck. After about 5 minutes, Petrik got out of the truck and the co-worker he tricked started chasing him through the construction site and Petrick tried to jump across a trench. Petrik fell into the trench, ultimately breaking his ankle.

Employer and Insurer denied the claim, stating that Claimant was engaging in horseplay. Claimant argued that his horseplay was insubstantial and that the injury did arise out of and in the course of his employment. In reviewing the "arising out of" portion of the arguments, the Supreme Court found that the activity in which Claimant was engaged – playing a prank on a co-worker during an idle period – was on in which employees might reasonable engage. Accordingly, the Supreme Court affirmed then Department finding that the injury did arise out of the employment.

The Supreme Court then addressed the "in the course of the employment" standard. In doing so, the court first addressed the extent and seriousness of the deviation from the employment activities. The Court stated that "however misguided, the extent of Petrik’s momentary impulsive deviation during a lull in work was insubstantial." The Court then addressed the completeness of the deviation to determine whether the act was commingled with the performance of a duty or whether it involved a complete abandonment of job duties. The Court found that although he engaged in prohibited horseplay, "the act was accomplished while [he] was waiting for the concrete truck," therefore finding he did not abandon his job duties.

The Court went on to find that it is expected that in the nature of the employment that certain horseplay would occur, and that a moment’s deviation from work should be expected. Accordingly, the Supreme Court found that although Claimant’s actions were misguided, that his act did not come from a deliberate or conscious excursion and did not require him to abandon any job duties.

If you have questions about this decision, please contact Charlie Larson at 605-336-2424 Thanks!