Section 29(1)(b)
MISCONDUCT, Negligence
CITE AS: Hauser v Gateway Expedition, Gladwin Circuit Court, No. 97-13242-AE (December 28, 1998)
Appeal pending: No
Claimant: John Hauser
Employer: Gateway Expedition
Docket No. B94-16985-135159
CIRCUIT COURT HOLDING: Failure of a truck driver to perform one part of a required pre-trip inspection prior to using a truck was not gross negligence.
FACTS: Claimant was an over-the-road truck driver. As part of his duties he was required to make a pre-trip inspection of the truck before he drove it. On his last day of work the claimant completed all of the inspection except forgot to check the water pressure by looking under the hood. Had he done so he would have found the radiator and alternator had been removed. Claimant drove the vehicle on a 30 mile trip and it overheated, causing damage in the amount of $4,500.00. The Referee found credible the claimant's testimony that his failure to inspect under the hood was an oversight.
DECISION: Claimant was not disqualified for benefits under Section 29(1)(b) of the Michigan Employment Security Act.
RATIONALE: Unintentional failure of a truck driver to do one part of a pre-trip inspection was not gross negligence. There was no evidence the failure to check under the hood was intentional. The court noted in Black's Law Dictionary, 5th Ed. pp. 931,932 gross negligence is defined as "an intentional failure to perform a manifest duty in a reckless disregard for the consequences." The court found gross negligence consists "of a conscious and voluntary act or omission which is likely to result in grave injury in the face of a clear and present danger of which the individual is aware," or a "conscious indifference to the rights and welfare of [others]."
Here the claimant simply overlooked by inadvertence the duty of checking underneath the hood. There was no evidence this was intentional, or a conscious and voluntary omission. It was not a conscious indifference to the employer's interests. It was not gross negligence and the claimant cannot be found disqualified for misconduct under Section 29(1)(b) of the Michigan Employment Security Act.
16, 21 d12: B