ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
JULIA BLACKWELL GELINAS DAVID J. BURTON
DANIEL G. FOOTE Burton & Simkin
Locke Reynolds LLP Richmond, Indiana
ELIZABETH G. RUSSELL
Krieg DeVault Alexander & Capehart, LLP
IN THE COURT OF APPEALS OF INDIANA
WIMMER TEMPORARIES, INC., and ) AMCAST INDUSTRIAL CORP., ) ) Appellants-Defendants, ) ) vs. ) No. 93A02-0003-EX-161 ) MARTIN MASSOFF, ) ) Appellee-Plaintiff. )
APPEAL FROM THE FULL WORKERS COMPENSATION
December 14, 2000
OPINION - FOR PUBLICATION
2. It is further found that on or about January 22, 1997 a certain
safety notice was posted in the glass case outside the break room at
the place of employment.
3. It is further found that the plaintiff, Martin David Massoff, was aware of
the safety procedure regarding shutting off the machine prior to cleaning the doser
spout prior to the time of his accident herein.
4. It is further found that on the date of the occurrence supervisory and
training employees observed the plaintiff cleaning the doser spout or performing another procedure
without following the posted safety rule but neither the supervisory or training employee
immediately counseled the plaintiff with respect to the safety violations as operations manager,
Lingo, testified should have occurred.
5. It is further found that the safety procedure required the machine to be
shut down and that a consequence of shutting the machine down is that
the dies cool off and create more scrap parts.
6. It is further found that after the posting of the safety notice the
co-employees who were responsible for training either the plaintiff or the person who
was training the plaintiff engaged in the same practices that were prohibited by
the safety notice; to-wit: cleaning the spout with the table running.
7. It is further found that on the evening of the occurrence the scene
was described as utter chaos in that there were breakdowns and numerous problems
causing parts to come out bad.
8, It is further found that immediately before the accident the plaintiff entered the
doser spout area while the machine was still in operation and without following
the safety procedure.
9. It is further found that notwithstanding the fact that the plaintiff did not
follow the safety procedure, the defendants defense, pursuant to I.C. 22-3-2-8, is hereby
denied based on the supervisory or training employees acquiescence in the violation of
the safety procedure, both by failing to immediately counsel the plaintiff when they
saw a safety procedure being violated and in failing to follow the appropriate
safety procedures themselves in performing their duties after the posting of the safety
notice. . . .
(R. 63-64) (emphasis supplied).
First, the Defendants rely on U. S. Steel Corp. v. Mason, 141 Ind.App. 336, 227 N.E.2d 694 (1967), rehg denied, for the proposition that acquiescence may prevent the assertion of a safety rule violation affirmative defense when the employer not only allowed the violation to exist and made no move to stop the violation or discipline the violator but also affirmatively directed the employee to continue working in violation of the rule.
In Mason, this court held that where a claimant, who the employer knew to be intoxicated while operating a crane, was violating the employers safety rules, the employer was prevented from asserting a safety rule affirmative defense for the employees injury that occurred while the employee was intoxicated because the employer failed to take the employee off the job, and made no move to stop the violation of its rules or to discipline the violator. Id. Therefore, Defendants contend that because they never directly instructed Massoff to continue working in violation of the safety rule, they did not acquiesce in Massoffs safety rule violation, and therefore, they should be permitted to assert the safety rule violation affirmative defense under Ind. Code § 22-3-2-8.
However, Defendants fail to recognize the following language in Mason:
In view of all the circumstances we come to the conclusion that the employer here allowed the violation to exist and made no move to stop the violation or discipline the violator.
If the employer allows violations of the rule or acquiesces therein, he cannot
later set up such a violation as a defense to the payment of
We believe that the employer has an obligation to check all infractions of
its rules particularly as they relate to drinking and intoxication. At least,
where an employee is drinking on the job and the supervisory personnel are
aware of it, it would be only common sense to get such a
man off the job and out of danger to himself and others.
We do not say that with thousands of workers, the employer should make
a check of each worker to ascertain their sobriety, but here is a
case where the condition was plain for all to see and nothing was
done by the employer to correct the condition.
By no means do we excuse drinking or intoxication on the part of
employees on any job, nor do we mean to contravene the statute that
bars recovery by employees who are intoxicated. What we are saying is
that when a violation is as evident and plain as in this case,
the employer must take some step to eliminate any semblance of approval or
Mason, 227 N.E.2d at 696 (citations omitted).
Therefore, the Defendants reliance on Mason is misplaced. We did not hold that the employer was prevented from asserting an affirmative defense for its direct instruction for the employee to continue working in violation of a safety rule, but instead, we held that the safety rule violation affirmative defense was properly denied because the employer failed to take some step to stop the violation and eliminate any semblance of approval or acquiescence.
Next, Defendants rely on Motor Freight Corp. v. Jarvis, 163 Ind.App. 442, 324 N.E.2d 500 (1975), for the proposition that an employer cannot establish a safety rule defense when a prohibited act is expressly permitted by the employer and injury results.
In Jarvis, we held that where an employee truck driver was not aware that he was committing a misdemeanor in violation of federal regulations requiring rest after ten hours of duty, and the forbidden trip was authorized and acquiesced to by the employers agent, the employees award for temporary total disability was not barred by commission of the misdemeanor or on a theory that the employee willfully failed or refused to obey an employer rule or perform a statutory duty. Id. Therefore, Defendants argue that because they never gave Massoff express permission to violate a safety procedure, their affirmative defense was improperly denied.
However, in Jarvis we also held that:
It should be noted in such cases that even though a workman has committed a misdemeanor through violation of some statute, his guilt will not defeat a claim for compensation where it is condoned by the employer. Where an employer knows that an employee has been violating safety statutes, and has acquiesced in it, he cannot be heard to set up such a violation as a defense to a claim for injury or death growing out of the breach.
Id. at 505. Thus, the Defendants reliance on Jarvis is misplaced.
We did not sustain the Full Industrial Boards finding and award in favor
of the employee because the employer expressly permitted the employee to violate a
safety procedure. Rather, we held that because the employer knew that its
employee was violating a safety statute, and acquiesced to the employees conduct, the
employer cannot assert the employees violation as an affirmative defense to the employees
Finally, Defendants rely on Kuhner Packing Co. v. Hitchins, 97 Ind.App. 228, 186 N.E. 262 (1933), for the proposition that an employers acquiescence may prevent the establishment of a safety rule violation defense when the employee is unaware of the rule he is charged with violating. Specifically, Defendants claim that because Massoff had clear knowledge of the safety rule he was violating, they met their burden of proof that Massoff had knowledge of the safety rule he was violating, and therefore, it was improper to prevent them from asserting their affirmative defense under Ind. Code § 22-3-2-8.
In Kuhner, the employee was injured while riding on an elevator used to convey materials to upper parts of a building that was under construction. Id. at 263. This conduct was a felony according to the building rules of the Administrative Building Council of Indiana. Id. Although this was a written prohibition at the work place, it was common practice for employees to use the elevator as a means of conveyance from one floor to another, and at the time of the accident, the employers vice president was riding the elevator when the elevator fell and injured the employee. Id. However, the employee had no knowledge of the rule, and no notice of any kind had been posted anywhere on or about the premises where the employee was working. Id. When the employee filed his compensation claim, the employer asserted the defense that no compensation should be allowed because the injuries sustained by the employee were due to his commission of a felony, and his willful failure to perform a statutory duty. Id. The Industrial Board found in favor of the employee and this court affirmed the Boards finding and held that:
As we view the rule in connection with the statute authorizing its enactment, its purpose and effect is to require of persons in charge of construction work that their employees be notified that they are forbidden to do that which the rule seeks to prevent . . .
It would be manifestly unjust to hold that an employer might ignore a
rule adopted as this one was, and then invoke it in order to
defeat an award of compensation to his servant, who was injured while in
the discharge of the duties of his employment in the way and manner
allowed, permitted, and authorized by the employer. This is particularly true when,
as in the instant case, the servant has no knowledge of the existence
of the rule violated.
Kuhner, 186 N.E. at 264.
Therefore, the Defendants reliance on Kuhner is misplaced. The language of Kuhner stands for the proposition that, even had the employee knew of his violation, the fact that the employers vice president not only allowed the prohibited conduct, but also himself engaged in the prohibited conduct prevented the employer from asserting the defense of the employees rule violation. Thus, an employer cannot shield itself from liability behind a safety rule that it fails to enforce, and instead displays its acquiescence.
In the present case, it is undisputed that prior to the posting of the safety notice, it was considered a safety violation and against company policy to ride the table or to be in an area behind the safety gate or in a cage with the machine in operation. However, several Amcast employees, including, Dave Clevenger (Clevenger), another die caster who trained Massoff, Buddy Baney (Baney), a die conditioner, and Orville Gamber (Gamber), a team leader, all testified that it was the typical practice at the plant to violate known safety rules and clean the doser spout while the table was still in operation. Clevenger and Baney testified that the reason for cleaning the doser spout with the machine in operation was because management put pressure on employees to clean the doser spout with the table in operation and turning off the table would slow down production, resulting in more scrap parts. Moreover, Massoff, Clevenger, and Baney testified that Clevenger, who was well aware of the safety violation, trained Massoff to clean the doser spouts with the table in operation. Amcasts Operations Manager Allen Lingo (Lingo) testified that on January 22, 1997, he posted a safety notice that he had written in the main aisle-way leading to the break area under glass. Lingo further testified that in the notice he stated that in the week prior to the posting of the safety notice, he had observed two employees inside the gate or cage when the machine was in operation. However, Baney and Gamber testified that after the safety notice was posted they witnessed employees cleaning the doser spouts with the table in operation. Furthermore, Massoff testified that at the time of the accident he had not seen the posted safety notice, but he was aware that riding the table was a safety violation. Clevenger and Gamber also testified that approximately six hours before Massoffs accident, they observed Massoff violating the safety rule by cleaning the doser spout while the table was in operation. However, neither Clevenger nor Gamber disciplined or counseled Massoff about his violative conduct. Nevertheless, Lingo testified that Clevenger and Gamber both had the authority to and should have approached Massoff and counseled him about discontinuing his violation of the safety rule.
Therefore, in reviewing the decision of the Board, we find that the Record reveals competent evidence of probative value to support the Board's finding that the Defendants acquiesced in Massoffs violation of the safety procedure, and therefore, Defendants affirmative defense under Ind. Code § 22-3-2-8 is denied. Because the Record sufficiently supports a finding that Amcast supervisory or training personnel failed to immediately counsel Massoff after witnessing him violate a safety procedure and failed to properly follow the safety procedures themselves in performing their duties all after the safety notice had been posted, we must affirm the Boards decision.
VAIDIK, J., and BAILEY, J., concur.