Milligan v. Milo Gordon Chrysler Plymouth Isuzu

BUETTNER, Presiding Judge:

[ 1 The facts in this review proceeding are undisputed but capable of differing inferences. - Claimant, William L. Milligan, worked for Employer, Milo Gordon Chrysler Plymouth Isuzu. At the request of Employer, Claimant drove a motoreycle to a business establishment to obtain an appraisal. While on a direct route back to Employer's place of business, Claimant lost control of the motorcycle while "popping a wheelie." He sustained an accidental personal injury to his right arm, leg and ankle, as well as head, neck and shoulder injuries.

12 Employer defended the claim on the ground that Claimant was injured while engaged in "horseplay." The trial court found Employer requested Claimant to operate the motorcycle in furtherance of its business, and that while the manner of operation may have been careless and reckless, it was not disconnected from his performance of the duties of his employment. The trial court found Claimant sustained an accidental personal injury arising out of and in the course of his employment and awarded him benefits for permanent partial disability.

T8 Employer sought review by the three-judge panel, The panel, with one dissent,¹ vacated the trial court's decision as contrary to law and against the clear weight of the evidence. Claimant seeks review of this order.

14 There are two elements to the "horseplay" defense, The activity must be (1) independent of and (2) disconnected from the performance of any duties of the employment. Horn v. Broadway Garage, 1940 OK 81, 186 Okla. 535, 99 P.2d 150. The defense is most often, but not exelusively, associated with fights or workplace pranks engaged in between two or more employees. See Horn v. Broadway Garage, Id., where the employee attempted to shoot a paper clip with a rubber band and injured his eye.

15 Employer and Claimant discuss the case of Darco Transportation v. Dulen, 1996 OK 50, 922 P.2d 591. In that decision the Supreme Court affirmed the trial court finding that the injury did not result from horseplay. Whenever conflicting inferences may be drawn from undisputed facts, the issue is not one of law but rather of fact. Id. at 594. It is only in the absence of competent evidence that a trial tribunal's decision may be viewed as erroneous as a matter of law and thus subject to appellate vacation. Id. Also see Canida v. Technotherm Corp., 2000 OK 83, 16 P.3d 1127, where the Oklahoma Supreme Court sustained an order denying compensation based on horseplay by finding competent evidence to support the order. The Supreme Court vacated the opinion of the Oklahoma Court of Civil Appeals, which had reviewed the evidence and rechar-acterized it by stating the employee had tried to avoid the horseplay as opposed to joining in it. The Supreme Court held that where there are conflicting inferences arising from undisputed facts, it is for the trier of fact to decide which theory is more likely true. Id. at 1129.

T6 We cannot say that as a matter of law the conduct at issue in this case could never be considered horseplay by a fact finder. The inferences could support a decision either way. The act of "popping a wheelie" could be considered independent of and disconnected from performance of employment duties. Therefore, competent evidence supports the panel's order and we are not at liberty to overturn the three-judge panel.

17 SUSTAINED.

{8 GARRETT, J., concurs; HANSEN, C.J., dissents with separate opinion.

1 . The dissenter stated: "The claimant was guilty of contributory negligence, and not 'horseplay'. Contributory negligence is not a bar to recovery." To a certain extent, horseplay is in the eye of the beholder. Here, two Workers' Compensation Court judges found horseplay, two said no. Unless it can be said that the conduct is or is not horseplay as a matter of law, it is a question of fact for the trier of fact.