Home > Uncategorized > On Trampolines and Serious and Willful Misconduct (Part 1 of 3)

On Trampolines and Serious and Willful Misconduct (Part 1 of 3)

February 11th, 2013

When your humble blogger was still a humble (and starving) law student, he was told that, upon receiving a license, most attorneys involuntarily go into what is known as “F&F Law.”  This was explained as “friends and family law” as the initial slate of clients.

Your humble blogger’s actual friends and family rarely have workers’ compensation defense questions to bring to him, but his imaginary ones always do, as was the case with his cousin’s girlfriend Sasha.

Sasha had started a business in Sacramento, where she hired painters to touch up houses and buildings in all the Northern California area.  Her edge in business?  She saved money by setting up trampolines around the work crews instead of using ropes or harnesses or even rail guards.  In fact, her only safety tool was the array of trampolines around the scaffolding that went up her clients’ buildings.

I asked Sasha if she thought this was dangerous, but she seemed convinced that trampolines would be the best bet of a “safe” workplace – lots of falls but no injuries. In a best-case scenario, the worker would bounce right back to where he or she was working before, and just resume work.  “And if it isn’t,” she said, “that’s what workers’ compensation insurance is for!”

This worked out just fine at first, with the workers either staying on their feet or bouncing to safety.  In fact, the trampolines proved so effective, workers even “practiced” falls during their lunch break, because it was so much fun.  But Sasha’s success was her eventual downfall.

As word spread of her low bills and cheerful workers, her operation expanded to window-washing and wall scrubbing, until she was hired to help clean and repaint some of the best-known sky-scrapers in San Francisco.  Your humble blogger is no physics expert, but he’s pretty sure that at a certain point, the fall is too great for a trampoline to effectively stop.

When one of her workers, April (the applicant) fell from the scaffolding set up around the building, she aimed for the trampoline set up ten stories below, as per her training.  The result was a very unfortunate injury and an application for adjudication of claim.  But the fun didn’t stop there – April also filed a petition for increased benefits, alleging Sasha’s misconduct was serious and willful.

Sasha called me to ask what she should do.  It turns out that, in response to this injury, she took the precaution of double-stacking her trampolines, but that work was continuing.  After I persuaded her to cease work until she had gotten regular safety equipment, including harnesses, I thought I might prep her for what was to come as part of this serious and willful claim.

Her first disappointment was the revelation that workers’ compensation insurance does not cover liability for allegations of serious and willful misconduct (see Insurance Code section 11661).  And the news didn’t get any better from there.

What do you think, dear readers, will she bounce back from this?  Come back on Wednesday for more…

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