Alabama Workers' Comp Blawg

  • 31
  • Mar
  • 2010


McWane, Inc. v. McClurg; released 3/26/2010 

The Alabama Court of Civil Appeals outlined what is required to prevail when asserting the defense of willful misconduct. The Court held that a mere violation of a rule does not establish willful misconduct. The employer must prove that the employee committed an intentional act; that violates a safety rule known by the employee; and that the employee knows the natural, probable, and serious result of violating the rule (act involved known or obvious risk so great that harm was highly probable).

In McClurg, the employee was reaching over a guardrail while a machine was not running and jiggled a wire causing the machine to start and injuring the employee. The employer said the employee was supposed to perform a lock out procedure and it was stipulated that if this was done the injury would not have occurred. However, in this case the Court found the employee did not understand the rule prohibited his conduct. Furthermore, the Court stated that the actions of the employee were not "of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow."

The employer argued that Ex parte Bowater controlled in this matter. However, the Court distinguished that case from McClurg. In Bowater the employee knew he was not to reach into a running machine to dislodge wood. Therefore, the Court in McClurg stated that the employee’s action in Bowater involved a "known or obvious risk that was so great to make it highly probable that harm would follow." This was due to the fact that the machine in Bowater was running unlike the machine in McClurg and the employee in McClurg had pressed a stop button as well.

Therefore, if the employee intentionally acts in a manner that violates a known rule it will only be willful misconduct if the employee knows the act is of such risk that it is highly probable harm would follow.

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