lemonade said:
Can anybody out there tell me what the legal definition is for "Gross Misconduct?"
We live within the Utah borders so the employment contract is governed by Utah Laws.
Thanks for your help
My response:
I can give you the California definition, which is undoubtedly closely held by most States. Serious and willful misconduct is more than negligence, however gross the negligence might be.
A negligent act is devoid of either an intention to do harm or of knowledge of the fact that danger is likely to result from the act.
Serious and willful misconduct, on the other hand, involves intention and knowledge, and includes, alternatively [Mercer-Fraser Co. v Industrial Acci. Com. (Epping, McNabb, Soden, Walsh) (1953) 40 Cal 2d 102, 251 P2d 955, 18 Cal Comp Cases 3; Johns-Manville Products Corp. v Superior Court of Contra Costa County (1980) 27 Cal 3d 465, 165 Cal Rptr 858, 612 P2d 948, 45 Cal Comp Cases 704, 9 ALR4th 758 ("reckless disregard" must be more than carelessness or even gross carelessness; it must be an affirmative and knowing disregard of the consequences); see Simpson Paper Co. v. Workers’ Comp. Appeals Bd. (Ruiz) (1999) 64 Cal.Comp.Cas. 1503 (writ den.) (employer engaged in serious and willful misconduct when applicant and applicant’s supervisor warned managing supervisor that overhead panel was loose and managing supervisor ordered applicant to operate paper trimming machine anyway, panel fell into machine and caused applicant’s injury); H.A. Lewis, Inc. v. W.C.A.B., Soto (App. 2000) 65 Cal.Comp.Cas. (MB) 295, denying writ (requiring deceased employee to work in 96 degree heat digging trench for three hours without break that caused his death from heat stroke constitutes serious and willful misconduct); J.C. Penney Liberty Mut. Ins. Co. v. W.C.A.B., Baker (App. 2000) 65 Cal.Comp.Cas. (MB) 555, denying writ (store manager’s failure to correct condition causing workers to slip and fall when he knew of prior accidents constituted serious and willful misconduct that proximately caused applicant’s injury)]:
(1). A deliberate act for the purpose of injuring another;
(2). An intentional act with knowledge that a serious injury is a probable result; or
(3). An intentional act with a positive and reckless disregard of its possible consequences.
Each of these three alternatives requires some awareness of danger on the defendant’s part. [Dowden v Industrial Acci. Com. (1963, 3rd Dist) 223 Cal App 2d 124, 35 Cal Rptr 541, 28 Cal Comp Cases 261] It follows, therefore, that a defendant guilty of serious and willful misconduct must know of the dangerous condition, know that the probable consequences of its continuance will involve serious injury to a plaintiff, and deliberately fail to take corrective action. [Johns-Manville Sales Corp. v Workers’ Compensation Appeals Board (Horensberger) (1979, 2nd Dist) 96 Cal App 3d 923, 158 Cal Rptr 463, 44 Cal Comp Cases 878; on sufficiency of constructive knowledge]
In other words, the danger must be one to which the defendant "has put his mind." [Keeley v Industrial Acci. Com. (1961) 55 Cal 2d 261, 10 Cal Rptr 636, 359 P2d 3, 21 Cal Comp Cases 15]
It is important that your attorney take some extra time with you to explain the distinctions between negligence, gross negligence, and serious and willful misconduct. Many clients want to "sue" the "bad guy" for what they perceive as the bad guy's "fault" for causing the injury. If your attorney determines that the bad guy did not commit serious and willful misconduct, you should be notified of that decision in writing.
Good luck to you.
IAAL
