Mercer-Fraser Co. v. Industrial Acc. Com

In Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, the Supreme Court assumed, without holding, that the deliberate decision of the company's chief engineer and superintendent of maintenance and construction to not provide additional bracing to prefabricated sections of a building under construction, despite numerous warnings about the stability of the sections and the fact the weather was windy, would be sufficient to support a finding of "serious and willful misconduct." (Id. at pp. 120-121.) The court concluded the findings actually made by the commission, however, were consistent with a determination of negligence only and thus could not support the award of additional compensation. (Id. at pp. 124-127.) (6) The Supreme Court discussed the meaning of serious and willful misconduct at length, contrasting such conduct with conduct that is negligent or even grossly negligent. (Mercer-Fraser, supra, 40 Cal.2d at pp. 116-118.) " 'Wilful misconduct ... necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom.' " (Id. at p. 117) " 'Wilfulness necessarily involves the performance of a deliberate or intentional act or omission regardless of the consequences.' " (Mercer-Fraser, at p. 117, quoting Porter, at p. 448.) " ' "Wilful misconduct" means something different from and more than negligence, however gross. The term "serious and wilful misconduct" is described ... as being something "much more than mere negligence, or even gross or culpable negligence" and as involving "conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences." ... The mere failure to perform a statutory duty is not, alone, wilful misconduct. It amounts only to simple negligence. To constitute "wilful misconduct" there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. ...' " (Mercer-Fraser, supra, 40 Cal.2d at p. 117.)