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The Supreme Court of South Dakota affirmed an award of death benefits to the surviving spouse of a municipal employee who died in a work-related trench collapse and criticized the state's Department of Labor for coming "perilously close to the prohibited concept of contributory negligence or fault.” The Court noted that the employer had contended the deceased employee had engaged in willful misconduct in failing to follow the employer's trench safety rules, particularly since the deceased was in charge of safety at the work site. The South Dakota Municipal League Workers’ Compensation Fund denied liability on that basis. Although the Department of Labor agreed that the deceased had been guilty of misconduct, but awarded benefits anyway, finding that the misconduct was not the proximate cause of the fatal accident. Quoting Larson's Workers' Compensation Law § 35.01, the Supreme Court chided the Department of Labor and noted the undisputed evidence was that the employer had failed to enforce its safety rules in the past. It could not utilize them in the instant case.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance.
See Bonebright v. City of Miller, 2020 SD 16, 2020 SD LEXIS 28 (Mar. 18, 2020)
See generally Larson’s Workers’ Compensation Law, § 35.01.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law
For a more detailed discussion of the case, see
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