Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: William J. McKibbin v. LIRC, Marten Transport, Ltd., and R. E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct., Dane County December 23, 1994)

Codes: MC 660 MC 662  MC 659.02

Employe, an over-the-road truck driver, fell asleep at the wheel of his rig. It rolled over and damage in the amount of $19,000 resulted. He was discharged. LIRC found misconduct, reasoning that the employe's falling asleep at the wheel was negligence of such a degree that it would constitute misconduct despite the fact that it was a single incident.

Held:  Reversed. Under the standard articulated in Boynton Cab, misconduct can be found where there are (1) deliberate violations or disregard of an employer's standards or (2) carelessness or negligence of a certain degree or recurrence. However, the commission ignored the definition of the degree of negligence required in order to find misconduct. The level of negligence defined by Boynton Cab as "misconduct" is that which manifests "wrongful intent or evil design" or shows "an intentional and substantial disregard of the employer's interests." A 1964 decision, Parchia v. Parchia, 24 Wis. 2d 659, 668, 130 N.W.2d 205 (1964), held that falling asleep at the wheel of a vehicle does not automatically establish gross negligence, and that evidence that the driver had been aware before the incident of drowsiness or intermittent sleeping was also necessary. The evidence did not show that the employe's conduct was of such degree as to manifest wrongful intent or evil design or to show an intentional and substantial disregard of the employe's duties and obligations to the employer.

Appealed to the Court of Appeals. Affirmed sub nom. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 95-0234 (Wis. Ct. App. Feb. 29, 1996) (unpublished per curiam)

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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