                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                February 15, 2012 Session

         TROY MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES

               Direct Appeal from the Circuit Court for Lincoln County
                     No. C1000141     Franklin L. Russell, Judge


                    No. M2011-00410-SC-R3-WC - Filed May 8, 2012




J ANICE M. H OLDER, J., dissenting.

        Today the majority adopts Larson’s four-element test for applying the defenses of
willful misconduct or willful failure to use a safety device. This test allows an employer to
assert the defenses of willful misconduct or willful failure to use a safety device when four
elements are satisfied: the employee has actual notice of the employer’s rule, the employee
understands that the rule is in place for safety reasons, the employer consistently enforces the
rule, and the employee has no valid excuse for violating the rule. I disagree with the majority
that the application of Larson’s test compels the conclusion that Mr. Mitchell’s removal of
his gloves was a willful failure to comply with his employer’s safety rule. The majority
concludes that “[t]he lack of a valid excuse for the failure to use a safety appliance or device,
when the first three elements [of Larson’s test] have been satisfied, amounts to willfulness.”
Our case law compels a different conclusion.

        For an employee’s conduct to be deemed willful, this Court has held that the conduct
must be more than reckless, negligent, or the result of an error in judgment. See Coleman
v. Coker, 321 S.W.2d 540, 543 (Tenn. 1959) (“[I]nadvertence or mistake of judgment or
negligence, or even gross negligence, fall far short of being willful misconduct . . . .”); Glass
v. Sullivan, 94 S.W.2d 381, 381 (Tenn. 1936) (“[W]illful misconduct means something more
than negligence and carries the idea of deliberation and intentional wrongdoing.” (citing
Nashville Co. & St. L. Ry. v. Wright, 250 S.W 903 (Tenn. 1923))); see also Nance v. State
Indus., Inc., 33 S.W.3d 222, 227 (Tenn. Workers’ Comp. Panel 2000) (instructing courts to
distinguish between cases in which behavior was “accidental, negligent, inadvertent,
thoughtless . . . , or even reckless” and “those cases in which the conduct was willful.” (citing
Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 183 (Tenn. 1974))). Prior to the majority’s
adoption of Larson’s test, the willful misconduct defense required that an employee’s
misconduct contain “an element of perverseness” to deny the employee workers’
compensation benefits. Nance, 33 S.W.3d at 227. Although “perverseness” may not be the
most modern or the most easily understood term, it did assist courts in determining what kind
of misconduct could be classified as willful. Perverseness indicates that in spite of the
employee’s knowledge that a safety rule exists, the employee is “‘hellbent for election’
anyhow.” Coleman, 321 S.W.2d at 542. Conduct that is merely negligent, reckless, or the
result of a lapse in judgment does not meet the standard of willfulness required by our
previous decisions.

        This Court defers to the trial court on issues of credibility and the weight to be given
to testimony. Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 167 (Tenn. 2002). Mr.
Mitchell testified that he believed he was in a “safe zone” and was not in danger of
electrocution when he removed his rubber gloves. The trial court found “it is plausible that
[Mr. Mitchell] believed the pole he was working on was not hot.” Although Mr. Mitchell’s
conduct in this case may rise to the level of negligence or recklessness, the removal of his
gloves when he assumed he was in a safe zone should not be deemed willful misconduct.
For this reason, the trial court determined that Mr. Mitchell’s conduct “was not willful within
the meaning [of the] applicable case law.” I would conclude that the evidence does not
preponderate against the trial court’s conclusion. Tenn. Code Ann. § 50-6-225(e)(2) (2008).

        The majority concludes that trial courts must determine whether an employee had a
valid excuse to recover benefits in willful misconduct cases. The majority further concludes
that Mr. Mitchell’s excuse in this case is not a valid one that would entitle him to benefits.
Today the majority adopts a test that will encourage the use of the willful misconduct defense
in instances in which the employee’s behavior is no more than negligent, reckless, or the
result of bad judgment.

       For these reasons, I respectfully dissent.




                                                    _________________________________
                                                    JANICE M. HOLDER, JUSTICE




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