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Harris v. Thompson Contractors2/5/2002
at happen."
"The negligence of the employee, however, does not debar him from compensation for an injury by accident arising out of and in the course of his employment." Archie v. Lumber Co., 222 N.C. 477, 480, 23 S.E.2d 834, 836 (1943). In addition, "not even gross negligence is a defense to a compensation claim." Hartley v. Prison Department, 258 N.C. 287, 289, 128 S.E.2d 598, 600 (1962). There was no evidence that would show plaintiff willfully intended to injure himself or someone else.
Defendants' alternative argument is also without merit. G.S. ยง 97-12 states that in order for the award to be reduced, the regulation must be approved by the Industrial Commission. Here, there is no evidence that Thompson's "rule" regarding the movement of the crane with the drop ball raised off the ground was ever reduced to writing. The superintendent was asked whether Thompson's safety policy covered when, how and under what circumstances a crane should be moved. The superintendent testified that it was " ot in the company policy, I don't think it does." The evidence supports the Full Commission's finding which in turn justifies its conclusion that " he evidence fails to establish that plaintiff's injuries were the result of a willful intention to injure himself or others, or the result of a willful breach of a safety rule or procedure adopted by defendant-employer." This assignment of error is overruled.
Defendants next contend that the Full Commission erred in its application of Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 293 S.E.2d 196. We do not agree.
The Full Commission found that " lthough plaintiff had previously been warned about moving the crane with the drop ball raised, he was not disobeying a direct or specific order from a then present supervisor when this incident occurred on 17 September 1997." The Full Commission concluded that " laintiff was not disobeying a direct or specific order from a then present supervisor when this incident occurred on 17 September 1997 and, therefore, he may recover compensation for his claim."
Defendants argue that the absence of a supervisor should not determine the matter. They argue that plaintiff's actions were not in furtherance of Thompson's business so plaintiff's disobedient act should operate to bar recovery.
Hoyle stated that:
e find that thrill seeking which bears no conceivable relation to accomplishing the job for which the employee was hired moves the employee from the scope of his employment. Likewise, disobedience of a direct and specific order by a then present superior breaks the causal relation between the employment and the resulting injury . Hoyle, 306 N.C. at 259, 293 S.E.2d at 202 (citations omitted).
Hoyle also stated " e are therefore of the opinion that employee's election to disobey a prior given order did not break the causal connection between his employment and his fatal injury if the disobedient act was reasonably related to the accomplishment of the task for which he was hired." Id. at 259, 293 S.E.2d at 203.
The superintendent testified that at the time of the accident there was not anyone "standing beside [plaintiff]" or anyone "standing there watching him the entire time." Plaintiff was hired to work as a drop ball operator. Plaintiff testified that just before the accident, he was "walking" the crane. Plaintiff was operating the crane which is a duty he was hired to perform. This is competent evidence to support the finding that plaintiff "was not disobeying a direct or specific order from a then present supervisor" at the time of the accident. This finding justifies the conclusion that " laintiff was not disobeying a dir
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