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Bender v. Dakota Resorts Management Group6/29/2005
Considered on Briefs on May 23, 2005
[ .] Robert Bender (Bender) worked as a ski lift operator at Deer Mountain Ski Area, located near Lead, South Dakota. Bender was injured while skiing during one of his breaks and sought compensation for his injuries from his employer. The circuit court found in favor of the employer, holding that the skiing injury sustained by Bender did not arise out of and in the course of his employment. Bender appeals and we reverse and remand.
Facts
[ .] Robert Bender was employed as a ski lift operator for Dakota Resorts Management Group, Inc., doing business as Deer Mountain Ski Area (Deer Mountain). Deer Mountain's policy was that lift operators would receive one fifteen minute break in the morning, a half hour for lunch, and a fifteen minute break in the afternoon. Because lift operators work outside on the ski slope, they were not required to "clock out" during their breaks. It was common for lift operators, as well as other employees, to take ski runs on their breaks.
[ .] On December 14, 2002, Bender asked his supervisor, Matthew Eddy (Eddy), if he could take a ski run during his afternoon break. Eddy consented and temporarily took over his duties while Bender completed the ski run. As Bender skied down the hill, he saw a skier ahead of him fall. As Bender approached the fallen skier, he turned his head to ask if he was alright. When he did so, Bender hit a dip in the terrain and fell, injuring his shoulder.
[ .] At the time of the accident, Deer Mountain did not have workers' compensation insurance so Bender brought this action under SDCL 62-3-11. The circuit court found in favor of the employer, holding that the skiing injury sustained by Bender did not arise out of and in the course of his employment. Bender appeals, claiming his injury arose out of and in the course of employment.
Standard of Review
[ .] Our standard of review on factual issues is clearly erroneous, meaning we will reverse only if we are "definitely and firmly convinced a mistake has been committed." Mudlin v. Hills Materials Co., 2005 SD 64, , ___ NW2d ___ (citing Norton v. Deuel School District, 2004 SD 6, , 674 NW2d 518, 520). However, "we review findings based on deposition testimony and documentary evidence under a de novo standard of review." Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, , 619 NW2d 260, 262 (quoting Wagaman v. Sioux Falls Construction, 1998 SD 27, , 576 NW2d 237, 240). Questions of law are also reviewed under the de novo standard. Mudlin, 2005 SD 64, , ___ NW2d at ___ (citing Norton, 2004 SD 6, , 674 NW2d at 520).
[ .] Whether Bender's injury arose out of and in the course of employment.
[ .] To recover under workers' compensation , a claimant must prove by a preponderance of the evidence that he sustained an injury "arising out of and in the course of the employment." SDCL 62-1-1(7); Mudlin, 2005 SD 64, , ___ NW2d at ___. The claimant must prove that "the employment or employment-related activities are a major contributing cause of the condition complained of." SDCL 62-1-1(7)(a).
[ .] We construe the phrase "arising out of and in the course of employment" liberally. Mudlin, 2005 SD 64, , ___ NW2d at ___. Therefore, application of the workers' compensation statutes is not limited solely to the times when the employee is engaged in the work that he was hired to perform. Id.
[ .] Both factors of the analysis, "arising out of" employment and "in the course of employment," must be present in all claims for workers' compensation. Id. . However, while each factor must be analyzed independently, they are part of the g
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