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Bender v. Dakota Resorts Management Group6/29/2005
question that does not lend itself to a precise formula; it has been suggested that it should be at least long enough for a reasonable employer to become aware of it.
Id.
[ .] Although we have not previously addressed a case involving recreational or social activities occurring on the premises during a scheduled break, in Piper v. Neighborhood Youth Corps, we held that "an injury may be compensable under the Workmen's Compensation Law even though it occurs during a lunch hour period." 90 SD 443, 446, 241 NW2d 868, 869 (1976). In that case, an employee fell asleep on a beached raft during his lunch break. The raft drifted out into the lake and the employee drowned attempting to swim back to shore. We found that even though the employer had warned the employee not to go swimming, the employer might reasonably expect employees to rest and relax on the raft. Id. at 447, 241 NW2d at 870.
[ .] At least one other jurisdiction has addressed a situation factually similar to that presented here. In Grather v. Gables Inn, LTD, the claimant was employed as a "ski bum" and was injured while skiing. 751 A2d 762, 764 (Vt 2000). As a "ski bum," the claimant's main duties were to serve breakfast to the employer's customers in the mornings and dinner in the late afternoons. The job was designed to leave time free to ski between late morning and late afternoon. The "ski bum" also received a ski pass as part of the compensation package. Id. Relying in part on § 22.01(3) of Professor Larson's treatise, the Vermont Supreme Court held that since the employer was providing a recreational opportunity (i.e., skiing) as an inducement to attract employees, the employer received "a benefit sufficient to bring the claimant's skiing within the course of his employment." Id. at 764-65.
[ .] Here, Deer Mountain was in the business of providing winter recreational opportunities to its customers, namely snow skiing and snowboarding. One of the benefits or perks afforded to Deer Mountain employees was the opportunity to partake in these recreational activities. Employees received free season passes, oftentimes stored their ski and snowboard equipment at the facility, and skied and snowboarded during their scheduled work breaks. Both Eddy and Randy O'Neill, who was the general manager/owner of Deer Mountain, testified they were aware of employees skiing and snowboarding during their work breaks and that they never told any of their employees that they could not do so. The testimony also indicates that employees skied and snowboarded during their scheduled work breaks on a regular basis.
[ .] Since Deer Mountain management allowed employees to ski or snowboard during their work breaks and the ability to do so was considered by employees as a benefit or perk to working at Deer Mountain, this activity was "impliedly authorized" by the "nature of the employment." Mudlin, 2005 SD 64, , ___ NW2d at ___. In fact, in this case, the activity was expressly authorized by Bender's supervisor, Eddy. This was a common and accepted practice at Deer Mountain and a "regular incident of the employment." See 2 Arthur Larson, Larson's Workers' Compensation Law, § 22.01(1), 22-2 (1999). In addition, Deer Mountain derived a "substantial direct benefit from the activity" in that the opportunity to ski and snowboard during work breaks was an inducement to attract employees. See Id. § 22.01(3). Therefore, the injuries that Bender sustained while skiing on his scheduled work break arose out of and in the course of his employment.
[ .] Deer Mountain argues that Norton v. Deuel School District requires us to hold that Bender's injuries did not arise out of and in the course of the employment. 2004 SD 6,
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