June 19, 2017 BY Thomas Whitley
Burdette in the Georgia Supreme Court
The affirmative defense of willful misconduct has seen several dramatic changes in the last few years, with decisions from the Georgia Court of Appeals and now the Georgia Supreme Court.
In 2015, the Georgia Court of Appeals issued a decision in Burdette v. Chandler Telecom, LLC., 335 Ga.App. 190, 779 S.E.2d 75 (2015), that made the assertion of the willful misconduct defense all but impossible in cases that did not involve criminal or quasi-criminal behavior. However, a recent reversal of the Appeals Court by the Supreme Court, Chandler Telecom, LLC v. Burdette (Ga., 2017), has breathed some life into the defense. This article will examine the relevant statutory authority and historical interpretation of the willful misconduct defense, before and after the recent Burdette reversal. It will also provide recommendations on how to apply this defense moving forward.
Any examination of case law must be grounded in statute whenever applicable. O.C.G.A. § 34-9-17 states that “no compensation shall be allowed for an injury or death due to the employee's willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injure another, or for the willful failure or refusal to use a safety appliance or perform a duty required by statute.” Willful misconduct is an affirmative defense; it must be shown that the willful misconduct of the employee is the proximate cause of the injury by a preponderance of the evidence. Commc'ns, Inc. v. Cannon, 174 Ga. App. 820, 820 (331 S.E.2d 112) (1985).
History of Burdette
In the case of Burdette v. Chandler Telecom, the claimant Burdette was injured when he fell while descending from the top of a cell tower. Evidence presented at the hearing demonstrated that Burdette had been specifically directed by his supervisor to descend from the tower in a certain manner, and he was not allowed to use a method called “controlled descent,” which is similar to rappelling. Towards the end of the workday when his accident occurred, Burdette announced that he wanted to descend using the prohibited “controlled descent” method. Another worker, who was the on-site lead, testified that immediately before his descent, he told Burdette to climb down because they did not have a safety rope and that Burdette might lose his job for failure to follow policy. The on-site lead then repeated this warning several more times. Despite the admonition, Burdette began a controlled descent and ultimately fell, suffering a serious injury to his ankle, leg, and hip. Testimony was put forward to show that the fall was the fault of Burdette rather than an equipment malfunction.
The ALJ found that that Burdette was barred from compensation because he had engaged in “willful misconduct.” The State Board affirmed the ALJ’s decision and that decision was appealed by Burdette to superior court, which affirmed the Board’s findings. Burdette appealed to the Court of Appeals, which reversed the lower courts findings.
The Court of Appeals reversed the lower court’s decision and held that the ALJ and Board had erred in finding Burdette’s workers’ compensation claim was barred due to willful misconduct on the part of Burdette.
The Court of Appeals looked at past cases to support its rationale, primarily relying on Supreme Court decisions and the Court of Appeals ruling in Wilbro v. Mossman, 207 Ga. App. 387 (427 SE2d 857) (1993). The Court of Appeals found that there was no meaningful distinction between Burdette’s claim and its decision in Wilbro.
In Wilbro, the claimant was a store clerk who fell from a shelf and injured her head and back. The evidence presented at the hearing demonstrated that the clerk had been instructed not to restock while standing on shelves, and that she was reminded by a co-worker not to stand on the shelves. The Court of Appeals in Burdette found that the claimant had not engaged in willful misconduct, noting that “the conduct was at most a violation of instructions and/or the doing of a hazardous act in which the danger was obvious, but was not conduct that was criminal or quasi-criminal in nature.”
This interpretation left a very narrow avenue with which to pursue a willful misconduct defense. Essentially this decision stripped down the defense to only apply in instances where a claimant acted in a quasi-criminal manner. The Court of Appeals in its Burdette decision noted that it felt bound by stare decisis to rule in a manner consistent with Wilbro.
Chandler v. Burdette in the Supreme Court
On February 27, 2017, the Georgia Supreme Court issued a ruling reversing the Court of Appeals. It framed the central question of the case as “whether an employee may – in deliberate disobedience of his employer’s explicit prohibition – act in a knowingly dangerous fashion with disregard for the probable consequences of that act, and still recover workers’ compensation when injured by this disobedient act.” The Court concludes that recovery may be barred in such circumstances. In so ruling, the Supreme Court highlighted a misapplication of O.C.G.A. § 34-9-17 (a), which it believed that the Court of Appeals had mistakenly applied in its cases subsequent to the Wilbro decision.
The Supreme Court focused on the application of one of the seminal cases, Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 342 (1) (150 SE 208) (1929), as the basis for its reversal. As mentioned above, the Court of Appeals focused on the language from Wilbro decision, which noted that the conduct in question was not criminal or quasi criminal in nature, and thus could not qualify as willful misconduct. This was in error. The Supreme Court noted that the Carroll decision “explicitly stated that ‘criminal or quasi-criminal’ meant simply ‘the intentional doing of something either with the knowledge that it is likely to result in serious injury or with the wanton and reckless disregard of its probable consequences.” Chandler Telecom, LLC v. Burdette (Ga., 2017) Thus, while the “mere violation of instructions or the mere doing of a hazardous act in which the danger is obvious cannot constitute willful misconduct,” it “does not mean that the intentional violation of rules cannot ever constitute willful misconduct.” Instead, in such cases, the “finder of fact must determine whether such an intentional act was done with the knowledge that it was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.” Id.
The Supreme Court thus clarified the correct standard. It stated that “an intentional violation bars compensation only when done either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable injurious consequences.” Id. The Supreme Court accordingly reversed and remanded Burdette to the Board to consider the facts in light of the correct standard.
Conclusion and Recommendations
The Burdette ruling revives the willful misconduct defense to allow considerations of actions outside the strict confines of criminal or quasi criminal conduct. While the standard put forward by the Supreme Court will still not be easy to meet, it does open the door for a more viable willful misconduct defense in more circumstances, namely where a claimant acts with extreme disregard to his own health and safety. This means that in situations like Burdette, when a claimant acts in contravention to an employer’s rules with disregard to his own personal safety, an employer should consider advancing a willful misconduct defense. Importantly, it now allows for common sense to be taken into account when evaluating whether a willful misconduct defense can be raised.
Moving forward, especially in a situation where an employee engages in high-risk work, clearly delineated guidelines for the activity of employees should be helpful. These guidelines would serve a dual purpose, to both instruct employees in best safety practices for potentially dangerous work and to highlight the danger of an employee’s failure to act in this manner. Implementing clear guidelines should help limit accidents, which is desirable for employees and employers. However, if an accident occurs when an employee has acted in contradiction to clearly expressed safety guidelines, the willful misconduct defense could be available.
The likelihood of success for this defense will also depend on the clarity and reasoning behind such employer rules and guidelines. The standard articulated by the Georgia Supreme Court notes that intentional violation of rules can be willful misconduct if an employer can show that the conduct in question was done with knowledge of the risk of serious injury or with reckless disregard to that risk. While it is difficult to predict how the standard will be applied by ALJs in practice, the ability to show knowledge of a workplace rule and its purpose prior to violation, perhaps through orientation with safety guidelines required to be read and signed by an employee, will likely be important in successfully asserting the willful misconduct defense.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley