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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. The Estate of Brett M. Milos v. Quality Asphalt Paving, Inc. (10/13/2006) sp-6062
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| THE ESTATE OF BRETT M. | ) |
| MILOS, DECEDENT, TERRY | ) Supreme Court No. S- 11835 |
| AND STAN MILOS, PERSONAL | ) |
| REPRESENTATIVES OF THE | ) Superior Court No. 3AN-03-10248 CI |
| ESTATE OF BRETT M. MILOS, | ) |
| ON BEHALF OF SAID ESTATE, | ) O P I N I O N |
| and TERRY AND STAN MILOS, | ) |
| ) No. 6062 - October 13, 2006 | |
| Appellants, | ) |
| ) | |
| v. | ) |
| ) | |
| QUALITY ASPHALT PAVING, | ) |
| INC., | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: Phillip Paul Weidner and Lisa
J. Rosano, Weidner & Associates, Inc.,
Anchorage, for Appellants. Eric P. Gillett,
Preg ODonnell & Gillett, PLLC, Seattle,
Washington, and Mark E. Wilkerson, Wilkerson,
Hozubin & Burke, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Brett Milos, an employee of Quality Asphalt Paving
(Quality), was driving a company ATV on a Quality work site when
he contacted a power line and was electrocuted. Miloss estate
sued Quality for wrongful death. The superior court granted
summary judgment to Quality, holding that AS 23.30.055, the
exclusive remedy provision of the Alaska Workers Compensation
Act, barred the estates claims. Because the evidence permits an
inference that Milos was off-shift at the time of the accident,
and because this fact is material to whether Miloss death arose
out of and in the course of his employment, we reverse the
judgment of the superior court and remand.
II. FACTS AND PROCEEDINGS
Brett Milos worked for Quality Asphalt Paving as a
materials technician at a gravel pit near Willow.1 He was to
gather and test samples of the gravel after it was crushed to
determine whether it met standards for road construction. His
job required a significant amount of waiting. Materials
technician Patrick Cummins, a coworker, explained that each test
lasted two hours but required only thirty to forty-five minutes
of work by the tester. Employees spent the remaining time
reading books, doing paperwork, listening to the radio, or
otherwise passing the time.
Quality stored the gravel in large stockpiles
throughout the work site. Two of these stockpiles were placed on
either side of a live power line running through the site. As
these two stockpiles grew, the gravel largely filled in the space
beneath the power line. At the time of the accident, the gravel
was only six feet below the power line.
The accident occurred around 10:00 P.M. on August 14,
2001. Cummins and Milos were both working that evening. Milos
was testing a sample in the test lab while Cummins was in the
gravel pit, examining rocks. When Cummins returned, Milos was in
his pickup truck listening to the radio, apparently waiting for a
stage of the testing to finish. Cummins entered the lab to check
Miloss calculations. While Cummins was in the lab, Milos got on
a company ATV parked outside the lab and drove to the top of the
gravel piled under the power line. When Milos reached the top,
his head contacted the power line and he was electrocuted.
Cummins and another employee, crusher operator Mark
Crawley, both later testified that there was no reason for Milos
to be on the stockpiles at the time of the accident. The
superintendent of the operation, Thomas Pitt, testified that
Milos was goofing off instead of doing his job of material
testing at the time of his death.
Drawing all reasonable inferences in favor of the
estate, we assume that Milos was not authorized to use the ATV.
According to the Alaska Division of Occupational Safety and
Health (DOSH) report, the ATV was primarily used by the road crew
to take line and grade measurements and technicians used a pickup
truck to haul samples. Cummins testified that Quality had
previously allowed Milos to use the ATV to carry gravel samples
back to the lab but that by the time Cummins started working at
the site Milos was using a coworkers pickup truck and no longer
needed to use the ATV. Miloss supervisor, Larry Schmidt,
testified that Milos had no business on that four-wheeler because
[h]e had a pickup truck there for his use to take samples. Pitt,
the superintendent, testified that he did not know Milos was
using the ATV but would have fired him had he known what Milos
was doing. Roger Brown, the crusher foreman, testified that he
did not know Milos was driving the ATV but would have stopped him
had Brown known. Crawley, the crusher operator, also testified
that Milos was not authorized to use the four-wheeler.
The parties dispute on appeal whether the evidence
permits an inference that Milos was off-shift at the time of his
death. Although the deposition testimony of Crawley, coupled
with the DOSH accident report, suggests that Miloss shift ended
before the accident, both Cummins and Schmidt testified that
Milos was still on duty when the accident occurred.
In August 2003 Miloss estate sued Quality and others
for negligence, loss of consortium, emotional distress, and
punitive damages. Quality moved for summary judgment in March
2004, arguing that workers compensation was the estates exclusive
remedy. After procedural delays not relevant here, the superior
court granted summary judgment to Quality, holding that Miloss
injuries arose out of and in the course of his employment even if
he was not authorized to use the ATV and was off-shift at the
time of the accident. The court therefore concluded that AS
23.30.055, the exclusive remedy provision of the Alaska Workers
Compensation Act (AWCA), barred the estates suit.2
The estate appeals.
III. DISCUSSION
A. Standard of Review
Summary judgment is appropriate if the record
demonstrates that there is no genuine issue as to any material
fact and . . . [the] party is entitled to a judgment as a matter
of law.3 All reasonable inferences of fact must be drawn in
favor of the losing party and against the prevailing party.4 We
review grants of summary judgment de novo.5
B. The Superior Court Did Not Apply the Statutory
Presumption of Compensation to Miloss Accident.
The estate first argues that the superior court erred
because it applied to Miloss accident the AWCA presumption that
an employees claim is compensable under workers compensation.
Alaska Statute 23.30.120 provides that [i]n a proceeding for the
enforcement of a claim for compensation under this chapter it is
presumed in the absence of substantial evidence to the contrary,
that . . . the claim comes within this chapter. The superior
court mentioned AS 23.30.120 in explaining why the estates
argument that Milos was not covered by workers compensation if he
was off-shift was oversimplifie[d].
The estate is correct in contending that the
presumption of compensability does not apply to cases in which an
employer is using workers compensation as a defense to a
negligence suit.6 But it is mistaken in believing that the
superior court actually applied any sort of evidentiary
presumption here. The court mentioned the presumption only once,
while explaining that the scope of workers compensation is broad.
The court appeared to be citing the presumption as evidence of
the legislatures intent to cast the net of workers compensation
broadly, not as a principle of law directly applicable to this
case. There is no indication that the superior court required
the estate to produce substantial evidence that Miloss injury was
not within the scope of workers compensation. In fact, the court
effectively accepted all of the estates factual contentions but
held that they were immaterial to the question of compensability:
The relatedness [between Qualitys actions and Miloss accident] is
sufficiently strong that it overpowers and dispels all contrary
factors: the end of the shift, the lack of employer benefit, the
unauthorized use of the four wheel ATV for horseplay.
The estates briefing on this issue appears to suggest
that summary judgment imposes some sort of burden on the movant
to persuade the court on issues of law as well as issues of fact.
The estate argues [i]t is not the Appellants burden to prove that
the on-shift or off-shift status of an employee precludes a grant
of summary judgment. Although it is certainly true that a party
can waive a legal argument by giving it only cursory treatment in
its brief,7 the movant need not prove its interpretation of the
law. It is the courts responsibility to determine the law. Once
a party has made a bona fide legal argument on a particular
point, the court may properly consider it even if the partys
presentation of its argument is unpersuasive or inept. The
estates argument therefore fails.
C. The Dispute About Miloss Clock Status at the Time of
the Accident Is Genuine.
The estate argues that the question whether Milos was
on- or off-shift at the time of the accident is both genuine and
material to whether Miloss injuries arose out of and in the
course of his employment with Quality. The superior court
appears to have thought that the dispute over Miloss clock status
was genuine but held that the dispute was not material. Quality
argues that Miloss clock status is neither genuine nor material.
We turn first to the question of genuineness.
The standard for finding a genuine issue of fact at
summary judgment is lenient. We will not engage in a weighing of
the evidence on summary judgment; there is a genuine issue of
material fact as long as the non-movant has presented some
evidence in support of its legal theory.8 Thus we have held that
a putative father created a genuine issue of fact by contesting a
highly accurate paternity test with a sworn statement that he was
not the father.9
Under this lenient standard, the estate submitted
enough evidence to create a genuine issue of fact as to Miloss
clock status. Crusher operator Crawley testified in his
deposition that he thought Miloss shift on the day of the
accident ran from noon to 10:00 P.M. The DOSH report places the
time of the accident at between 10:00 and 10:30 P.M. Crawley
also testified that he had no reason to dispute an alleged police
report10 stating that troopers responded to the 911 call regarding
Miloss accident at 10:08 P.M. A factfinder could reasonably find
from this evidence that the accident occurred after Miloss shift
ended.
Although Quality points to what it calls the
unequivocal testimony of Cummins that Milos was on-shift at the
time of the accident, the DOSH report and Crawleys testimony, if
believed, suggest that Miloss shift ended before the accident
occurred. It is for a factfinder to determine which witnesses
are most credible.
Quality argues that there is no evidence that Crawley
had personal knowledge of what time Miloss shift ended on the day
of the accident and that Crawleys testimony is therefore
inadmissible under Alaska Evidence Rule 602. Rule 602 prohibits
witnesses from testifying to a matter unless it is demonstrated
that they have personal knowledge of it.
The estates attorney asked Crawley how he knew the
hours of Miloss shift. Crawley responded:
Well, its just that we had one technician.
Hes taking care of two shifts. And when he
come in at noon, he took care of the first
shift, and then the last later part of his
shift after when first shift stopped and
then night shift started, the second shift,
there is a 30-minute dead time of the two
shifts corresponding, ganging up, getting the
maintenance done on the crusher, oiling or
any you know, taking care of any problems.
And then he would take off. Then we would
take off.
Brett [Milos] would be back to take samples.
He would run one sample, two samples for me
and he would run one sample. If all the
samples were good that day, he would run one
sample. If we were having problems where our
gradations were jumping around on us and
stuff, he would hang in there and run more
samples.
Although this passage is a little hard to decipher, it appears to
establish that Crawley was basing his statements about Miloss
hours on both his knowledge obtained through working with Milos
and his understanding that the overall operation required
materials testers to work at certain times relative to the crews.
It is true that Crawleys statements appear to be informed by
general knowledge of Miloss typical working hours rather than by
specific knowledge of his hours on the day of the accident. But
evidence of Qualitys routine practice of assigning shifts is
admissible under Alaska Evidence Rule 406 to prove that the
conduct of the . . . organization on a particular occasion was in
conformity with the . . . routine practice. Crawleys explanation
therefore provides an adequate foundation for his statement
despite testimony of other employees that Milos was working
different hours on the day of the accident. If the factfinder
were to find Crawleys testimony more credible than that of
Qualitys witnesses, it could properly find that Miloss shift
ended at 10:00 P.M.
D. The Dispute About Miloss Clock Status at the Time of
the Accident Is Material.
The primary issue in this appeal is whether Miloss
clock status is material to whether his injuries arose out of
and in the course of his employment.
The superior court held that the unforgivable
misconduct of Quality by placing a stockpile below a power line
and the foreseeability of the resulting injury to Milos
established that the injury was sufficiently work-related to
arise out of Miloss employment with Quality. The court stated
that contrary factors such as the end of the shift, the lack of
employer benefit, [and] the unauthorized use of the four wheel
ATV for horseplay were overpower[ed] by Qualitys misconduct. On
appeal, the estate argues that Miloss activities cannot be work-
related if they occurred after his shift ended.11 Although it is
not necessary to consider whether, as the estate contends, an
employee must be on-shift when injured to be covered by workers
compensation, we do hold that in the circumstances of this case,
Miloss off-shift status, if proved, may exclude him from the
scope of workers compensation.
Alaska Statute 23.30.010(a) provides that workers
compensation extends to injuries that arose out of and in the
course of the employment. According to AS 23.30.395(2), the
phrase arising out of and in the course of employment includes
employer-required or supplied travel to and
from a remote job site; activities performed
at the direction or under the control of the
employer; and employer-sanctioned activities
at employer-provided facilities; but
excludes recreational league activities
sponsored by the employer, unless
participation is required as a condition of
employment, and activities of a personal
nature away from employer-provided
facilities.
Alaska Statute 23.30.010(a) requires payment of benefits if, in
relation to other causes, the employment is the substantial cause
of the disability or death or need for medical treatment. We
have looked in our cases to whether the accidental injury or
death is connected with any of the incidents of ones employment12
and whether the employees activity is reasonably contemplated and
foreseeable by the employment situation.13 Another important
consideration is whether the activity benefits the employer in
some way.14
The statutory definition of arising out of and in the
course of employment provides little guidance here. Quality
argues that AS 23.30.395(2)s exclusion of activities of a
personal nature away from employer-provided facilities implies
that personal activities on an employers premises are included,
even if they occur off-shift. But Qualitys argument fails to
recognize that Miloss actions also do not fall within the scope
of activities identified by the statute as included in workers
compensation. Resolving all inferences in favor of Milos, his
use of the ATV was not an employer-sanctioned activit[y] at
employer-provided facilities15 because he was not authorized by
Quality to use the ATV. It is also difficult to see how Milos
might be considered to have been acting under the control of
Quality at the time of the accident if it is true that Milos was
both off-shift and committing a fireable offense.16 Hence, the
most relevant examples of covered activities in the statute seem
to exclude Miloss actions. Because the statutory definition
neither clearly includes nor clearly excludes Miloss actions, we
turn to our case law.
Quality argues that Seville v. Holland America Line
Westours17 requires us to affirm the superior court. In that
case, an employee leaving work slipped on an icy sidewalk that
the employer was legally obligated to maintain.18 We held that
workers compensation was applicable, reasoning that
when an employer, in connection with the
operation of its business, is charged with a
legal duty to control or abate a specific
hazard in the area adjacent to its premises
even a common hazard to which the general
public is exposed the legal duty itself
supplies the necessary element of
work-relatedness.[19]
Quality argues that if failure to abate a danger off-premises can
create the necessary element of work-relatedness, then a failure
to abate a danger on-premises must also create work-relatedness.
The superior court agreed, noting that [t]his judge has
great difficulty understanding why a tumble by an off-shift
worker, off-premises, due to a hazard (icy sidewalk) not abated
by the employer, should be compensable; but a post-shift on-site
accident from a hazard affirmatively created by the employer
should not be compensable.
Seville is distinguishable from this case. Seville
created an exception to the premises rule. The premises rule
states that employees are covered by workers compensation while
coming and going from work for only as long as they are on the
employers premises.20 The exception to this rule recognized in
Seville, known as the special hazards exception, holds that an
injury occurring due to special hazards on the normal route that
employees must traverse to reach the employers premises is
covered by workers compensation.21 But neither the premises rule
nor any of its exceptions is directly relevant here because Milos
was not going to or coming from work at the time of the accident.
Qualitys argument that Sevilles holding that an off-
premises accident was compensable requires us to hold that Miloss
on-premises accident is also compensable ignores a crucial part
of our holding in that case. We reasoned there that the special
hazard exception is justified because if employees are forced to
traverse a particular route to reach their worksite, the special
hazards of that route become the hazards of the employment.22
Leaving work for the day via an employer-maintained sidewalk is a
hazard reasonably contemplated and foreseeable by the employment
situation.23 We are not convinced that Miloss unauthorized, post-
shift activities were similarly reasonably contemplated by or
incidental to Miloss employment, even if they might have been
foreseeable.24 Traveling to and from work is an unavoidable part
of employment. Employees necessarily rely upon the employer to
keep the paths into the workplace free from hazards.25 In
contrast, drawing all inferences in the estates favor, Miloss
actions were voluntary, unauthorized, and on his own time. He
could not have necessarily relied upon Quality to protect him
from the exposed power line because there was no employment-
related reason for him to drive the ATV up the stockpile. In
short, the hazards posed by the ATV and power line in the
particular circumstances of this case were not necessarily the
hazards of the employment.26
Quality also points to Witmer v. Kellen to support its
argument that workers compensation is broad enough to cover
Miloss actions.27 But Witmer is also distinguishable from this
case. Witmer, the president and sole shareholder of a company,
was injured while accompanying a subordinate on a work-related
errand.28 Although Witmer claimed that his motives for taking the
trip were personal, we noted that he would inevitably evaluate
the performance of the subordinate and stood to benefit from the
subordinates successful completion of the errand.29 Also, because
Witmer was the president of the company, his actions, unlike
Miloss, could not be considered unauthorized.30 Hence, even if
Witmer could be understood as being off-shift during the trip,
there was a stronger nexus between Witmers actions and his
employment than is present in this case.
Quality argues that the estate seeks to draw an
arbitrary line in time, making all post-shift accidents
noncompensable. We agree that an arbitrary line would be
undesirable. But we are also unwilling to accept the contrary
view that any employee injury occurring on the employers premises
is automatically compensable, no matter how far removed from the
employees working hours. The Larson treatise strikes a sensible
compromise between these absolutist positions, suggesting that an
employee injured during a reasonable period before or after
working hours may be covered if she is engaged in activities
necessary or reasonably incidental to her work,31 but that an
employee who merely loiters around the work place before or after
hours may not be covered.32 Under Larsons approach, arriving at
work early to change clothes and have a cup of coffee,33 or
leaving late because of commuting arrangements,34 might be within
the scope of workers compensation, but remaining at the workplace
to drink beer and become intoxicated would not be.35
Applying the Larson standard to this case, Miloss
activities are outside the exception for employees injured during
a reasonable interval after their shift ends. Drawing all
inferences in favor of the estate, Miloss shift ended at 10:00
and he suffered his fatal injury within thirty minutes
thereafter. We assume that thirty minutes can be a reasonable
interval in some circumstances. But regardless of whether the
interval was reasonable, Miloss unauthorized use of the ATV
cannot be considered necessary or reasonably incidental to his
work. If a factfinder believes the estates evidence, Milos was
loitering at the work site for purely personal reasons after his
shift had ended. Quality presented no evidence to suggest that
his loitering benefitted Quality in any way, or was otherwise
connected to his work. The estate has therefore demonstrated
that there is a genuine issue of material fact as to whether
Miloss actions were outside the scope of workers compensation.
We also note that Miloss post-shift diversion is
distinguishable from that of an employee acting during a lull in
his duties. Some jurisdictions have held that the scope of
workers compensation is broader if the injury results from
horseplay during such a lull.36 Quality presses us to apply the
same principle in this case.37 An employee in a lull has little
choice but to find a way to pass the time as he waits for his
duties to resume; an off-shift employee is free to leave the work
site and pursue recreational activities on his own. If he
chooses to stay on the employers premises for reasons unconnected
to his work and then injures himself, such an injury is generally
too remote from the course of his employment to be covered by
workers compensation.
IV. CONCLUSION
We hold that if all reasonable inferences are drawn in
favor of the estate there is no sufficient nexus between Miloss
unauthorized, post-shift actions and his employment with Quality
to allow summary judgment based on the exclusive remedy provision
of the workers compensation statute. We therefore REVERSE the
summary judgment and REMAND for further proceedings.
_______________________________
1 Because we are reviewing the superior courts grant of
summary judgment to Quality, we recite the facts in the light
most favorable to the estate. See Kaiser v. Umialik Ins., 108
P.3d 876, 879 (Alaska 2005). This statement of facts does not
preclude the parties from litigating any genuine factual disputes
on remand.
2 AS 23.30.055 provides in relevant part that
[t]he liability of an employer prescribed in
[the workers compensation act] is exclusive
and in place of all other liability of the
employer and any fellow employee to the
employee, the employees legal representative,
husband or wife, parents, dependents, next of
kin, and anyone otherwise entitled to recover
damages from the employer or fellow employee
at law or in admiralty on account of the
injury or death.
3 Alaska R. Civ. P. 56(c).
4 Kaiser, 108 P.3d at 879; Alpine Indus., Inc. v. Feyk,
22 P.3d 445, 447 (Alaska 2001).
5 Kaiser, 108 P.3d at 879.
6 AS 23.30.120 (limiting scope of presumption to a
proceeding for the enforcement of a claim for compensation under
this chapter); Himschoot v. Shanley, 908 P.2d 1035, 1041 (Alaska
1996) (holding that presumption was inapplicable in case in which
injured worker sued in tort); see also Alaska Pulp Corp. v.
United Paperworkers Intl Union, 791 P.2d 1008, 1011 (Alaska 1990)
(characterizing statutory presumption as pro-worker and refusing
to apply it to facilitate proof of an employee status contrary to
that asserted by the worker).
7 Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991) (holding that point given only cursory statement in
argument portion of brief is waived).
8 Alakayak v. British Columbia Packers, Ltd., 48 P.3d
432, 449 (Alaska 2002) (emphasis in original).
9 See Meyer v. State, Dept of Revenue, Child Support
Enforcement Div. ex rel. N.G.T., 994 P.2d 365, 368 (Alaska 1999).
10 The police report itself is not in the appellate
record. Police reports are inadmissible in civil cases under
Alaska Evidence Rule 803(8)(b).
11 We infer, from the estates exclusive focus on the issue
of whether Milos was off-shift at the time of the accident, that
it concedes that Miloss lack of authorization to use the ATV,
standing alone, is not sufficient to place Miloss accident
outside the scope of workers compensation.
12 M-K Rivers v. Schleifman, 599 P.2d 132, 13435 (Alaska
1979) (quoting N. Corp. v. Saari, 409 P.2d 845, 846 (Alaska
1966)).
13 Id. at 136; see also Marsh v. Alaska Workmens Comp.
Bd., 584 P.2d 1134, 1136 (Alaska 1978) (holding that activity is
covered if reasonably foreseeable and incidental to employment).
14 See Luth v. Rogers & Babler Constr. Co., 507 P.2d 764
(Alaska 1973).
15 AS 23.30.395(2).
16 See id. Quality argues that Miloss activities were
under the control of the employer because Quality controlled the
ATV, the employees, and the existence of the stockpiles. Quality
reads the direction or control requirement of AS 23.30.395(2) too
broadly. It is apparent from the plain text of the statute that
it is not the personnel or instrumentalities of the activity that
must be directed or controlled by the employer, but the activity
itself. Thus, to fall into this category, the activity must, at
a minimum, be authorized by the employer. Quality does not
dispute that there is a genuine factual dispute about whether it
authorized Miloss use of the ATV.
17 Seville v. Holland Am. Line Westours, 977 P.2d 103
(Alaska 1999).
18 Id. at 105.
19 Id. at 109.
20 Id. at 106; see also 1 Arthur Larson & Lex Larson,
Larsons Workers Compensation Law 13.01 (2005).
21 Seville, 977 P.2d at 108.
22 Id. (quoting Sokolowski v. Best W. Golden Lion Hotel,
813 P.2d 286, 290 (Alaska 1991)).
23 Witmer v. Kellen, 884 P.2d 662, 665 (Alaska 1984).
24 M-K Rivers, 599 P.2d at 136; Marsh, 584 P.2d at 1136.
25 Seville, 977 P.2d at 109.
26 Id. at 108.
27 Witmer v. Kellen, 884 P.2d 662 (Alaska 1994) (quoting M-
K Rivers, 599 P.2d at 136).
28 Id. at 664.
29 Id. at 666.
30 Id.
31 See 2 Larson, supra note 21, 21.06[1][a].
32 Id. 21.06[1][c].
33 See Stewart v. United States, 716 F.2d 755, 759, 763
(10th Cir. 1982) (holding that injury suffered by employee
arriving twenty-three minutes early to change clothes and have
cup of coffee was covered by workers compensation).
34 See Babkees v. Electrolux Corp.,163 N.Y.S.2d 809, 809
(N.Y. App. Div. 1957) (holding that injury suffered by employee
while being picked up by her husband one hour after working hours
was covered by workers compensation).
35 See Lona v. Sosa, 420 N.E.2d 890, 892, 895 (Ind. App.
1981).
36 See 2 Larson, supra note 21, 23.07[5] (citing cases
and noting that workers whose jobs call for vigorous physical
activity cannot be expected, during idle periods, to sit with
folded hands in an attitude of contemplation).
37 Quality asserts that it is undisputed that Milos was
injured during . . . a lull in work. But in fact, the estates
entire appeal is based on its contention that Milos was injured
after his shift ended. As noted above, the estate has
effectively conceded that it cannot prevail if Milos was on-shift
at the time of the accident. Therefore, we interpret Qualitys
brief as arguing that the lull doctrine should also apply to
employees engaging in horseplay and other diversions after their
shift is complete.
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