An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

employee has “willfully and deliberately caused his own death.” Because the language requires that the employee has formed an intent in order for the injury to be deemed non-compensable, recovery is possible where suicide is the result of delirium, an uncontrollable impulse, or an inability to make a conscious rational decision. Thus, benefits would be payable if there were evidence of a mental disorder sufficiently serious to deprive one of volition. 1431 Note that there is a presumption that a death is not caused by suicide, and the burden of proving suicide rests with the school. 1432 4. I NITIAL P HYSICAL A GGRESSOR An injury is not compensable if it arises “out of an altercation in which the injured employee is the initial physical aggressor.” An altercation is an exchange between two or more individuals characterized by an atmosphere of animosity and a willingness to inflict bodily harm. The difficulty with this section of the code is in determining who the “initial aggressor” is. The term is construed in the context of reasonableness, extent of provocation, human propensities and materiality of the initial aggression to the particular injury. Generally, the “initial aggressor” is the person who first engages in physical conduct which a reasonable man would perceive to be a real, present and apparent threat of bodily harm. 1433 5. S KYLARKING O R H ORSEPLAY Active participants in skylarking, horseplay or pranks are guilty of a material breach of their employment duties and are not eligible for compensation for any injury sustained during the activity. However, as pranks by fellow employees may be expected, and constitute a hazard of the job, nonparticipating employees who are injured are eligible for benefits. 1434 6. F ELONIOUS A CT An injury incurred during the commission of a felonious act by the injured employee and of which the injured employee is convicted, is not compensable. 1435 7. O FF -D UTY R ECREATIONAL A ND A THLETIC I NJURIES An injury which arises out of voluntary participation in off-duty recreational, athletic or social activity, not constituting part of the employee’s work related duties, is not compensable unless such activity was: (1) a reasonable expectancy of employment, and (2) either an express or implied requirement of employment. 1436 Labor Code Section 3600(a)(9) was enacted in 1978. Before then, it was held that if an employer sponsored a program of recreational or athletic activity, e.g., by providing facilities on their premises, or sponsoring a team, an injury incurred in such use would be considered to arise out of employment. 1437 (During an employee’s Christmas party, liquor was served which resulted in the death of an employee in a later auto accident.) Whether Labor Code Section 3600(a)(9) has altered these rules as they pertain to use of on premise recreational or athletic facilities while off duty is not clear. On the other hand, if the

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 325