I Have an Business Law Assignment # 2

Elmer Dulen was injured and his codriver Polly Freeman was killed when a tractor-trailer rig driven by Dulen entered a railroad crossing and was struck by an oncoming train. Both Dulen and Freeman had been hired by Darco Transportation to transport goods cross-country to San Francisco. On the night of the accident, Dulen stopped his rig behind another truck when the signal arms at a railroad crossing lowered. The arms malfunctioned and came up before an oncoming train reached the intersection. The first truck proceeded across the tracks and Dulen followed. While the first truck avoided being hit, Dulen’s rig was rammed by the train. The protective arms did not relower until Dulen’s semi was on the tracks. At the scene of the collision, a female traffic investigator noticed that Freeman was clad only in a T-shirt. She also observed that Dulen’s pants were unbuttoned, unzipped, and resting at mid-hip. After Dulen was admitted to the hospital, the investigator questioned Dulen about how the accident had happened. Dulen said, “I was f—ing her and now, oh, my God, I have killed her.” According to the investigator, Dulen also told her that when the accident occurred, Freeman was sitting in his lap facing him. However, in later testimony Dulen explained that by his statement at the hospital he meant that he had been living in an inti-mate relationship with Freeman for five months before the accident and felt responsible for her death because she was driving with him. He also denied telling the officer that Freeman was sitting in his lap and that they were having sex when the accident occurred. Other evidence revealed that there was not enough room between the steering wheel and the seat for two people of Dulen’s and Freeman’s size physically to fit into that space together.

Dulen sought workers’ compensation benefits for what he maintained were on-the-job injuries. After various Oklahoma courts ruled in Dulen’s favor, Darco appealed to the Supreme Court of Oklahoma.

When examining the compensation tribunal’s factual resolutions, this court applies the any-competent-evidence standard. The trial judge’s findings may not be disturbed on review if sup-ported by competent proof. Oklahoma’s jurisprudence has long recognized that a com-pensable work-related injury must both: (1) occur in the course of, and (2) arise out of the worker’s employment. These two distinct elements are not to be understood as synonymous. The term “in the course of employment” relates to the time, place, or circumstances under which the injury is sustained. The term “arise out of employment” contemplates the causal connection between the injury and the risks incident to employment. We must be mindful that in this case we are applying workers’ compensation law. The concept of a worker’s contributory fault, which the compensation statute discarded, must not be resurrected obliquely as a defense against the employer’s liability. The Workers’ Compensation Court was faced with the task of determining if Dulen, when injured, was performing work in furtherance of his master’s business—i.e., whether he was then “in the course of employment.” If the trial tribunal tended to believe that Dulen and Freeman were having sex at the critical time, the question to be decided was whether the claimant’s conduct is to be deemed horseplay—a complete departure from or abandon-ment of his employment. This issue concerns itself solely with the “course of employment” bounds—not with the risk incident to employment, i.e., the “arising out of” element.

Assuming as a fact that when the collision occurred, Dulen

was having sex while also driving the rig, the trial judge could still find that this servant’s acts constituted no more than a careless, negligent, or forbidden genre of performance, but did not amount to pure frolic which was tantamount to total abandonment of the master’s business. On this record, such a finding would not be legally or factually incorrect. The record contains ample evidence reasonably supporting the notion that Dulen’s injury was work-related, and occurred while he was en route to his assigned destination. Above all, uncontroverted is the stub-born fact that Dulen, when injured, occupied his assigned work station—the driver’s seat behind the steering wheel of Darco’s truck. The record offers no proof that Dulen had deviated from or abandoned his master’s mission, transporting goods to San Francisco. An injury is compensable if it arises out of the claim-ant’s employment—i.e., was caused by a risk to which the employee was subjected by his work. Any other notion would impermissibly interject into this State’s compensation regime concepts of common-law cause and foreseeability: the legal underpinnings of negligence. The only criterion for compensability is the statute’s test of a connection-in-fact to the employment. The record is devoid of any proof that the protective arms were in good working order. The trial tribunal found the equipment’s failure was the direct cause of the claimant’s in-juries. At the time of Dulen’s injuries, he was employed as a Darco truck driver with an assigned task—transporting goods to the West Coast. This required his presence on the high-ways. A causal connection between the act in which Dulen was engaged, when injured, and his job description is clear. Because the perils of this servant’s travel for his master are co-extensive with the risks of employment, Dulen’s injuries undeniably arose out of his work Two insuperable hurdles absolutely militate against overturning the trial tribunal’s findings and exonerating the employer as a matter of law. Assuming Dulen and Freeman were engaged in sexual intercourse, (1) there is undisputed proof that, when the collision occurred, Dulen remained at the steering wheel and hence cannot be deemed to have then “abandoned”

his assigned work station; and (2) there is competent evidence to support the trial judge’s finding which as-cribes the accident’s cause, not to copulation-related inattention, but to defective railroad-crossing warning equipment.

Problem Case 1

1. Adam Childers worked as a cook at Boston’s Gourmet Pizza. While on duty, he was struck in the back by a heavy freezer door, seriously injuring his lower back. As a result of the injury, Childers suffered from severe lower back, hip, and leg pain. He was treated with pain medication and physical therapy, but his condition worsened over several months. He wanted to have spinal fusion surgery, but the doctors recommended against it. At the time of the injury, Childers was 25 years old, six feet tall, and weighed approximately 340 pounds. Due to his age and weight, the surgery was extremely risky. Furthermore, Childers’s weight ballooned to 380 pounds in the months after his injury because he was depressed and inactive. Though he tried to lose weight by adjusting his diet, he failed. A doctor ultimately recommended that Childers undergo lap band or other weight reduction surgery so that either his resulting weight loss would alleviate his pain symptoms or his lowered body weight would allow him safely to have back fusion surgery. Boston’s Gourmet Pizza admitted that Childers’s back injury was work-related and did not dispute that treatment for the injury was covered under the applicable workers’ compensation law. It argued, though, that it was not obligated to provide the precursor surgery (i.e., lap band for weight reduction) that would allow Childers to undergo the treatment for his work-related injury. Rather, the employer asserted that Childers’s weight problem was a preexisting condition that relieved it of responsibility for Childers’s treatment under the workers’ compensation law. Is the employer’s argument correct?