Lenhart GROTHE, d/b/a Northern Exploration & Equipment Co., Appellant, v. Theodore T. OLAFSON, Appellee.
*603 Paul W. Waggoner, Paul W. Waggoner, Inc., Anchorage, for appellant.
Gerald W. Markham, Kodiak, for appellee.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
This case involves an action for damages for personal injuries Theodore Olafson received while engaged in drilling and blasting work for Lenhart Grothe. The superior court rendered a judgment for Olafson, *604 finding: 1) that Olafson was working as an employee of Grothe; 2) that Grothe was negligent in failing to provide Olafson with safe working conditions and equipment; 3) that Grothe's negligence was a proximate cause of the injuries to Olafson; 4) that Grothe was not entitled to raise the defense of comparative negligence; and 5) that Olafson was entitled to $56,133 in damages. Grothe appeals.
Lenhart Grothe, d/b/a Northern Exploration & Equipment, Co., is a mining engineer who operates a tin mine near Nome and develops subdivisions in Kodiak. Theodore Olafson is a retired member of the laborer's union who worked for over 40 years as a driller and blaster of rock. In 1978, Grothe was developing a 32-acre parcel of land in Kodiak which contained a large rock formation. Grothe wanted to level the rock promontory so that he could install sewer and water lines as well as build on the levelled land. The rock and gravel which was produced would be available for the construction of roads in the subdivision and for sale to other contractors.
In early June of 1978, Grothe hired Olafson to drill and blast the rock, and Olafson immediately began working. The drilling work involved the use of a large tractor-treaded hydraulic drill which is used to drive steel rods into the rock. The part of the drill which drives the steel is called the "hammer" which is mounted on the "mast" and moves up and down on a chain. The mast is attached to the "boom" which connects to the main body of the tractor. The drilling machine used by Olafson belonged to Grothe.
The afternoon before the accident Olafson was operating the machine when the drive chain broke. To repair the chain, it is necessary to lower the mast, remove, repair and reinstall the chain, and then raise the mast. In order to raise and lower the mast, one of the connecting pins must be removed and then reinserted. Olafson repaired the chain that evening and returned the next morning to reconnect the mast and resume drilling.
Olafson was injured while he was attempting to align the holes so that he could reinsert the connecting pin. Normally, the holes can be positioned by using the hydraulic system to raise the mast. Olafson testified that the hydraulic system on the drill was too weak to raise the mast from its horizontal position. He attempted, instead, to raise the mast by driving the drill forward on its tracks while the bottom of the mast was braced against a rock bank. Evidently, while Olafson was attempting to insert the pin, the hydraulic lever controlling the position of the hammer vibrated open, causing the hammer to rise on the mast. This caused the mast to become unbalanced and it flipped backwards, striking Olafson on the right side. Olafson was taken to the hospital and was treated for multiple rib fractures. He remained in the hospital for four days.
After the injury, Olafson initially filed a claim with the Worker's Compensation Board. After learning that Grothe had no worker's compensation insurance, Olafson elected to maintain a tort action for damages rather than a worker's compensation claim.
*605 At the conclusion of a non-jury trial, the court rendered a judgment in Olafson's favor, but ruled that his recovery would be reduced to reflect his own comparative negligence. Olafson then filed a motion for amendment to findings and conclusions of law. He asked the superior court to reconsider its ruling regarding the defense of comparative negligence in light of Carroll v. Universal Irrigation, Inc., 18 Wash. App. 854, 573 P.2d 373 (Wash. App. 1977). The superior court granted Olafson's motion and amended its conclusions so as to preclude any reduction in damages for Olafson's comparative negligence.
Grothe then filed a motion for reconsideration of the comparative negligence issue. Grothe also filed a motion for relief from judgment under Civil Rule 60(b). Both of these motions were denied, and this appeal followed.
I. Did The Superior Court Err In Holding That Olafson Was An Employee Rather Than An Independent Contractor?
The superior court concluded that the relationship between Grothe and Olafson was one of employer/employee rather than general contractor/independent contractor. The court based this determination on application of the "relative nature of the work" test, set out in Ostrem v. Alaska Workmen's Compensation Board, 511 P.2d 1061 (Alaska 1973). Grothe claims the superior court's determination is unsupported by the evidence and erroneous as a matter of law.
In Searfus v. Northern Gas Co., Inc., 472 P.2d 966 (Alaska 1970), this court announced that it was adopting the "nature of the work" test for determining whether a person is an "employee" under the Alaska Worker's Compensation Act. Rejecting the traditional "master-servant control" test we turned to the analysis advocated by Professor Larson.
Terming this approach the "relative nature of the work" test, Larson would have the trier of fact determine `employee' status through consideration of the character of the claimant's work or business, and the relationship of the claimant's work or business to the purported employer's business.
The `relative nature of the work' test has two parts: first, the character of the claimant's work or business; and second, the relationship of the claimant's work or business to the purported employer's business... . With reference to the character of claimant's work or business the factors are: (a) the degree of skill involved; (b) the degree to which it is a separate calling or business; and (c) the extent to which it can be expected to carry its own accident burden. The relationship of the claimant's work or business to the purported employer's business requires consideration of: (a) the extent to which claimant's work is a regular part of the employer's regular work; (b) whether claimant's work is continuous or intermittent; and (c) whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of the particular job.
Initially, the superior court focused on the character of Olafson's work. The court found that Olafson was employed as an unskilled laborer. While it is true that Olafson was a member of the laborer's union, his work for Grothe involved drilling *606 and blasting, a profession which requires certification and licensing by the state. Even Olafson concedes the job requires some special skills. The superior court recognized this distinction in its second finding that Olafson worked as a "powder monkey," and that this was a separate calling since the evidence showed there were only three or four people working in that field in Kodiak.
The most helpful criterion suggested for use in examining the nature of the claimant's work is probably the inquiry into whether the claimant can be expected to carry his own accident burden. This consideration focuses on the economics of the independent contractor's status. Since workmen's compensation is designed to help the ordinary worker whom experience has shown is unable to meet the costs of industrial accidents out of his own resources, it is relevant to examine whether the realities of his position actually indicate this dependence on an employer's assumption of risks as a normal consequence of hiring him.
Since Grothe was a developer engaged in the use and occasional sale of the rock, it was more reasonable for Grothe to bear the risk of its production.
The superior court next considered the relationship of Olafson's work to Grothe's business. The superior court found that it was a regular part of Grothe's business because Grothe was in the mining business and previously had been involved in extracting rock from the subdivision. The trial court also considered whether Olafson's work was continuous or intermittent in nature and concluded that it was the latter. The third and final Ostrem factor the superior court considered was whether Olafson's work amounted to a hiring of continuing services as distinguished from contracting for a particular job. The court concluded that Olafson was hired for a single job, drilling and blasting work.
Viewing the evidence as a whole, the court has concluded that it preponderates in favor of an employer, employee relationship rather than one of general contractor, independent contractor.
Although we view the question as an extremely close one, we are persuaded that the superior court did not err in finding an employment relationship.
Grothe was under a duty to avoid creating a situation which would pose an unreasonable risk of harm to Olafson. Nazareno v. Urie, 638 P.2d 671 (Alaska 1981). In addition, since Grothe furnished the drill which was used by Olafson, he was under the further duty to exercise reasonable care to ensure that the drill was safe for its intended use.
Mandatory. No employee shall be assigned, or allowed, or be required to perform work alone in any area where hazardous conditions exist that would endanger his safety unless he can communicate with others, can be heard, or can be seen.
The superior court did not specifically state that it found Grothe to be negligent per se for violation of these regulations. Since the court phrased its conclusions of negligence in the language of the regulations, however, it seems the superior court did adopt the regulatory provisions as the applicable standard of care in this case.
Assuming that Grothe's excavation is subject to the federal regulations and applying the criteria of Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska 1971), and Bailey v. Lenord, 625 P.2d 849, 856 (Alaska 1981), we conclude that the superior court could properly adopt 30 C.F.R. 56.14-26 (unsafe equipment shall be removed) and 30 C.F.R. 56.18-20 (employee shall not be left alone in hazardous work conditions) as codified standards of due care.
The superior court found that the drill provided by Grothe had a defectively weak hydraulic system which prevented the operator from using the normal procedure to change the position of the connecting pins. Two witnesses testified that the hydraulics on the drilling machine used by Olafson were weak and would sometimes be unable to lift the boom. Olafson testified that he had previously warned Grothe that the hydraulic system was not working properly and that Grothe had promised to have it repaired. Olafson stated that if the hydraulics had been working properly, he would have been able to use the normal method and thus would not have been injured. Grothe claimed that the hydraulics were strong enough to raise the boom and that he had been able to change the position of the pins using the normal method. He testified that after the accident the machine had been used in other jobs and that there had been no problems with the hydraulics. On the other hand, Grothe admitted that Olafson had told him about a problem with the hydraulics and that Grothe had thought that the weakness was due to an air leak in the motor. Grothe stated that he had tried to repair the system but that his repairs did not seem to have made very much difference. Grothe also admitted that the drive chain on the drill had not broken during subsequent jobs. Thus, the problem Olafson had faced may simply not have arisen on these later jobs.
We think there was sufficient evidence in the record to support the superior court's finding that the drill's hydraulic system was defective and that Grothe had notice of this problem. Grothe's failure to repair the drill adequately (or to provide a replacement) constituted a breach of his common law and statutory duty to provide Olafson with safe equipment.
*608 C. Was the harm to Olafson foreseeable?
Grothe claims that the chain of proximate causation was broken because: 1) he was not aware of any defect in the machinery; 2) he was not aware that the chain had broken so he could not have known Olafson needed assistance; 3) Olafson's method of inserting the pin (driving the drill forward with the mast braced against the rock) was unforeseeable. We find all of these arguments devoid of merit, and therefore affirm the superior court's ruling that Olafson's injuries were a foreseeable result of the defect in the drill and the lack of assistance given to Olafson.
III. Did The Superior Court Err In Ruling That The Defense of Comparative Negligence Was Not Available?
In its final decision, the trial court ruled that under AS 23.30.055 and AS 23.30.080, Grothe was not entitled to assert the defense of comparative negligence to reduce Olafson's recovery. In the initial decision, the court had found Olafson to be twenty percent negligent and had reduced the award accordingly. Grothe argues that the defense of comparative negligence is available under AS 23.25.020.
AS 23.30.055 provides that when an employer fails to secure payment of compensation, an injured employee may elect to claim compensation or to maintain an action at law for damages. In such an action, the employer "may not plead as a defense that ... the injury was due to the contributory negligence of the employee." Further, AS 23.30.080 states that if the employer failed to carry insurance, the employer "may not escape liability for personal injury ... sustained by an employee when the injury sustained arises out of and in the usual course of the employment because ... (3) the employee was negligent... ." In contrast, AS 23.25.020 provides that in an action brought by the employee against the employer, "the fact that the employee may have been guilty of contributory negligence does not bar a recovery where his contributory negligence was slight and the negligence of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee."
Olafson relies heavily on Carroll v. Universal Irrigation, Inc., 18 Wash. App. 854, 573 P.2d 373 (Wash. App. 1977), to support his argument that AS 23.30.055 and AS 23.30.080 override AS 23.25.020 and deny Grothe any comparative negligence defense. In Carroll, a Washington appellate court held that an employer who fails to secure worker's compensation insurance is barred from asserting the employee's negligence as a defense. Id. at 377. The court reasoned that the statutory provisions which deprive a non-complying employer of certain common law defenses were intended to induce employers to comply with the worker's compensation *609 system. Id. at 376. The court specifically rejected the defendant's argument that AS 23.25.020 preserved the defense of comparative negligence for the employer. Id. at 377 n. 4.
A showing of comparative negligence to diminish plaintiff's award would allow the employer to escape liability for a portion of plaintiff's injuries. This would be inconsistent with the above noted policy and purpose of the workmen's compensation laws.
Id. at 377. Thus, we hold that the superior court did not err in its conclusion that comparative negligence was inapplicable in the context of this litigation.
IV. Was The Court's Finding That Olafson Was Disabled By The Injury Erroneous?
The superior court concluded that Olafson was disabled due to the recurrent pain associated with his injured ribs. Dr. Loren Halter's testimony supports this determination. However, other physicians testified that Olafson was not disabled or that his inability to work was caused by his pre-existing bronchial condition or his obesity. Under Civil Rule 52(a), the superior court's findings shall not be set aside unless clearly erroneous. On this record, we are *610 not persuaded that the superior court's findings relating to Olafson's disability are clearly erroneous.
V. Did The Superior Court Err In Refusing To Grant Grothe's Motions For Relief From Judgment?
Grothe filed a Rule 60(b) motion for relief from judgment on the grounds of newly discovered evidence. Specifically, Grothe sought to reopen the trial in order to present the testimony of Dr. George Stewart on the issue of Olafson's alleged disability. The superior court summarily denied the motion.
These requirements are that the evidence (1) must be such as would probably change the result on a new trial; (2) must have been discovered since the trial; (3) must be of such a nature that it could not have been discovered before trial by due diligence; (4) must be material; (5) must not be merely cumulative or impeaching.
Id. at 776. Although Grothe filed a Rule 60(b) motion for relief from judgment rather than a Rule 59 motion for a new trial, we have indicated that when the underlying ground is "new evidence" the analysis is similar. Patrick v. Sedwick, 413 P.2d 169, 178 (Alaska 1966).
The new evidence in this case consists of the testimony of Dr. Stewart, who prepared one of the reports admitted in evidence at trial. Dr. Stewart indicated in his affidavit that if permitted he would testify that in his opinion: 1) Olafson's ribs were substantially healed by the time of trial, June 1980, and perhaps as early as April 1979; 2) that Olafson had not exhibited any signs of pain or rib fractures during his preliminary testing in May 1980; and 3) that there was no indication of any lung damage or defect. This testimony would be based on his review of the X-rays and prior lab reports. Olafson asserts that this testimony does not contradict the testimony of Dr. Halter and would therefore not alter the result. If believed, Dr. Stewart's testimony would indicate that Olafson was fully recovered, with little or no pain and normal mobility.
Olafson asserts that Dr. Stewart's testimony does not qualify as new evidence, since his identity was known to Grothe's counsel well before the trial and all parties were aware that his report was to be admitted at trial. Grothe argues that he only became aware of the need for Dr. Stewart's testimony after Dr. Halter presented his opinion that Olafson's ribs had never healed and were the main source of Olafson's continuing disability. Grothe claims he was surprised by Dr. Halter's testimony and by the admission of the X-rays which were taken the day before trial. Olafson responds that Grothe's claims of surprise are unjustified and that he has failed to satisfy the due diligence requirement for the following reasons: 1) Grothe's counsel gave no indication of surprise at trial and made no motion for a continuance to attempt to ascertain if Dr. Stewart could testify; 2) prior to trial, Grothe's counsel was provided with a copy of Dr. Halter's report which contained the same conclusions Dr. Halter *611 presented in his testimony; 3) Grothe's counsel had ample opportunity to depose Dr. Halter or Dr. Stewart but neglected to do so; and 4) Grothe's counsel made no attempt to submit this new evidence in the six-week period in which the court had the matter under advisement. On the basis of the foregoing, we would conclude that Grothe failed to demonstrate that the evidence could not have been obtained upon diligent investigation.
Finally, Olafson argues that Dr. Stewart's testimony was cumulative to the testimony of Dr. Eufemio and Dr. Johnson. Both physicians testified that Olafson's rib injuries from the accident were healed and would not restrict his present or future working ability. Grothe admits that Dr. Stewart's testimony would be similar to the other physicians, but claims that it would not be cumulative because of Dr. Stewart's expertise in this area.
The standard for review of an order denying a Rule 60(b) motion is whether the superior court abused its discretion. Reversal is justified only if this court concludes the trial court was clearly mistaken. McCracken v. Davis, 560 P.2d 771 (Alaska 1977). We hold that the superior court's denial was well within its discretion.
COMPTON, Justice, concurring in part, dissenting in part.
Although I otherwise agree with the court's resolution of this appeal, I disagree with the conclusion that the superior court did not err in finding that Olafson was an employee of Grothe's, and I therefore also disagree with the conclusion that Olafson's recovery should not be reduced by the amount of his comparative negligence.
With reference to the character of claimant's work or business the factors are: (a) the degree of skill involved; (b) the degree to which it is a separate calling or business; and (c) the extent to which it can be expected to carry its own accident burden. The relationship of the claimant's work or business to the purported employer's business requires consideration of: (a) the extent to which claimant's work is a regular part of the employer's regular work; (b) whether claimant's work is continuous or intermittent; and (c) whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of the particular job.
Focusing first on the character of Olafson's work, it is apparent that Olafson's work both involved special skills and was a "separate calling" from Grothe's business. Thus, the first two factors indicate that Olafson was an independent contractor rather than an employee. The third factor to be considered when focusing on the character of Olafson's work is the extent to which Olafson could be expected to carry his own insurance. The superior court concluded that the inherent danger of Olafson's work with dynamite made it economically unreasonable to expect Olafson to obtain his own insurance. This factor, according to the court, weighs in favor of considering Olafson an employee. There is no indication, however, that any evidence was presented to the court establishing whether or not persons performing the same type of work as Olafson obtain their own insurance. Similarly, there is no indication of evidence establishing how much it would have cost Olafson to obtain his own insurance and what percentage of his compensation the cost of insurance would have been. It therefore appears that there was no evidentiary basis for the court's finding that it was unreasonable to expect Olafson to obtain his own insurance. If one is to engage in idle speculation, it makes as much sense, if not more, to assume that Olafson was provided sufficient compensation for his inherently dangerous work to permit him to obtain his own insurance.
*612 The next step in the analysis is to examine the relationship between Olafson's work and Grothe's business. It is undisputed that Olafson's work was intermittent in nature. The short duration of his work for Grothe indicates that he was "contracting for the completion of the particular job." Ostrem, 511 P.2d at 1063. Both of these facts strongly suggest that Olafson was an independent contractor rather than an employee. The final consideration is "the extent to which claimant's work is a regular part of the [purported] employer's regular work." Id. The superior court concluded that drilling and blasting was a regular part of Grothe's business because Grothe had previously been involved in extracting rock in the course of developing subdivisions. The court therefore found that Olafson's work was a regular part of Grothe's regular work. I believe this misinterprets the test. As we indicated in Ostrem, it is not whether the general type of work performed is a regular part of the employer's or contractor's work, but whether the individual in question regularly works for the employer or contractor. "Does he work for many people, `on call', for a few businesses, or for a single employer?" Id. at 1064 n. 5. Olafson did not regularly work for Grothe or function as a regular part of Grothe's business. Instead, he worked for Grothe on only two prior occasions. The rest of the time he worked for various other contractors.
I believe that all of the facts in this case indicate that Olafson was an independent contractor and not an employee of Grothe's. The "significant factors" relied upon by this court in affirming the superior court on this "extremely close" question are the supposed unreasonableness of requiring Olafson to provide his own insurance and "the general trend towards liberalizing the scope of workers' compensation coverage." 659 P.2d at 606 & n. 10. These are merely policy considerations, which I believe could be sufficient to tilt the scales in favor of finding employee status if some facts indicated employee status while other facts indicated independent contractor status. I do not believe, however, that they are sufficient to support a finding of employee status when all of the facts contradict this finding, as they do in this case. Accordingly, I believe the superior court erred in finding that Olafson was an employee of Grothe's, rather than an independent contractor.
This does not effect Olafson's claim against Grothe, except as to the issue of whether comparative negligence can be raised by Grothe as a defense to the action. We have repeatedly held that an owner or general contractor is liable for his own negligence that causes injury to his independent contractors and their employees. Sloan v. Atlantic Richfield Co., 552 P.2d 157, 160 (Alaska 1976). See also Everette v. Alyeska Pipeline Co., 614 P.2d 1341, 1347 (Alaska 1980); Hammond v. Bechtel Inc., 606 P.2d 1269, 1274 (Alaska 1980); Hobbs v. Mobil Oil Corp., 445 P.2d 933, 934 (Alaska 1968). I agree with the conclusion that the superior court did not err in finding that Grothe was negligent toward Olafson and that this negligence resulted in Olafson becoming disabled. Thus, I believe the court properly determined that Olafson was entitled to recover damages from Grothe.
The superior court initially determined that Olafson's recovery should be reduced by twenty percent, which reflects the amount of Olafson's comparative negligence as determined by the court. It subsequently ruled, however, that Grothe was not entitled to assert the defense of comparative negligence because Grothe had failed to carry insurance at the time of Olafson's accident. On appeal, Grothe argues that the court erred in making this ruling. I agree on the basis of my conclusion that Olafson was not an employee. The statutory provision that an employer may not escape liability because of the employee's negligence if the employer failed to carry insurance at the time of the injury is only applicable if the injured person was an employee. AS 23.30.055, AS 23.30.080. In view of my conclusion that Olafson was an independent contractor and not an employee, I would hold that it is irrelevant that Grothe was not carrying insurance at the *613 time of the accident. I would accordingly order Olafson's recovery to be reduced by the amount of his comparative negligence, but would otherwise affirm the judgment of the superior court.
 At the time of the accident Olafson was 74 years old. Although he claimed he was retired from the union in 1977, receiving his union pension and social security, Olafson continued to seek employment and occasionally got jobs as a driller and blaster. The trial court found that except for the accident Olafson could have continued working for five more years.
 Grothe testified he wanted from 4,000 to 8,000 cubic yards of rock produced.
 Although this account of the accident is somewhat speculative, both parties seem to have accepted this version of the accident.
[I]f an employer fails to secure payment of compensation as required by this chapter, an injured employee or his legal representative in case death results from the injury may elect to claim compensation under this chapter, or to maintain an action against the employer at law or in admiralty for damages on account of the injury or death... .
 The motion was made pursuant to Alaska R.Civ.Pro. 52, 59.
 In Carroll, a Washington appellate court interpreted the Alaska Worker's Compensation Act as mandating that when an employer fails to secure worker's compensation insurance, and the employee elects to maintain an action at law (see note 4, supra), the employer may not plead the employee's comparative negligence as a defense. 573 P.2d 373, 376-77.
 1C. Larson, Workmen's Compensation Law § 43.52 (1980).
 1 U.C.L.A.-Alaska Law Review 40, 55-56 (1971).
 One of the more significant factors in our holding affirming the superior court's finding of an employer-employee relationship is resolution of the "burden of insurance" factor. We are also cognizant of the general trend towards liberalizing the scope of workers' compensation coverage. Juneau Lumber Co. v. Alaska Industrial Board, 122 F. Supp. 663 (D.Alaska 1954). In this regard see also: Searfus v. Northern Gas Co., Inc., 472 P.2d 966, 969 (Alaska 1970).
 Metz v. Haskell, 91 Idaho 160, 417 P.2d 898 (Idaho 1966); Restatement (Second) of Torts § 392 (1965).
 In order to adopt a statutory standard of care the superior court must find that the plaintiff is within the class protected by the statute and the harm/injury which occurred was the type which the statute was intended to protect against. Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska 1971); Restatement (Second) of Torts 286 (1965). The court must also find that the statute/regulation prescribes specific conduct rather than merely a general or abstract duty of care. Bailey v. Lenord, 625 P.2d 849, 856 (Alaska 1981).
 The superior court also found a breach in Grothe's failure to provide Olafson with adequate assistance. There is sufficient evidence in the record to establish that the presence of an assistant would probably have prevented the accident since an assistant would have observed the movement of the hammer and would have been able to warn Olafson before the mast became unbalanced. Since Olafson was an employee, we conclude that there was sufficient evidence in the record to support the superior court's conclusion that Grothe negligently failed to provide adequate assistance.
 The superior court found the defect to be in the drill's hydraulic system and the record shows that Grothe was aware of the problems with the hydraulics. Grothe had notice that the chain would break and was in need of repair. Thus it was foreseeable that a 74 year-old man engaged in drilling and blasting (with a defective machine) would need assistance at some point. Although Olafson's method of raising the mast to repair the drill was not a standard procedure, it was one of the methods which operators used in attempting to align the pin holes on the drill. Given this evidence and Grothe's admitted knowledge of the workings of this drilling machine, we hold that the superior court did not err in concluding that the method used by Olafson was foreseeable in light of the drill's defective hydraulic system.
 Grothe asserts that the superior court erroneously imputed Olafson's negligence to Grothe. There was no imputation of negligence in this case. Grothe was held independently liable for the faulty hydraulic system and his failure to provide adequate assistance to Olafson.
Similarly, we find no merit in Grothe's contention that the superior court erroneously concluded that 30 C.F.R. 56.18-20 required a chuck tender to assist Olafson. The superior court concluded that "the defendant was negligent in allowing Olafson to work alone under hazardous conditions." No direct or implied reference was made to 30 C.F.R. 56.7-9 or to a requirement for a chuck tender.
 Carroll v. Universal Irrigation, Inc., 18 Wash. App. 854, 573 P.2d 373 (Wash. App. 1977).
 We are unpersuaded by the several arguments that Grothe advances in support of application of comparative negligence. We deem it sufficient to address only one of his arguments. Grothe claims that under the general rules of statutory construction the three statutes should be construed so as to give effect to each of them, citing State v. Green, 586 P.2d 595, 603 (Alaska 1978). He asserts that this can be accomplished by holding that AS 23.30.055 and AS 23.30.080 only preclude the defense of contributory negligence and not the comparative negligence defense provided by AS 23.25.020 of the Employers' Liability Act. The problem with this approach is that it glosses over an apparent direct conflict between the statutes. While AS 23.30.055 only mentions contributory negligence, AS 23.30.080 is couched in broader terms and seems to bar any use of employee negligence as a defense. Where the provisions of the Employers' Liability Act (AS 23.25.010-.040) conflict with those of the Worker's Compensation Act we have held that the latter prevail. Haman v. Allied Concrete Products, Inc., 495 P.2d 531 (Alaska 1972); Gordon v. Burgess Construction Co., 425 P.2d 602 (Alaska 1967).
 In conjunction with this specification of error, Grothe asserts that the superior court failed to make findings of fact regarding Olafson's disability. Civil Rule 52(a) provides that in actions tried without a jury, the court, in rendering its decision, shall set out specific findings of fact and conclusions of law. The trial court's duty is to make findings sufficient to give a clear understanding of the basis of its decision in order to enable an intelligent review on appeal. State v. I'Anson, 529 P.2d 188 (Alaska 1974).
Grothe argues that the superior court made no finding as to the cause of Olafson's disability. He claims that given the conflicting testimony of the medical experts a specific finding on the disability should have been made. The parties' arguments on Olafson's alleged disability break down into three main positions: 1) that Olafson's injuries were healed and he was free from disability; 2) that Olafson was disabled but his disability was due to pre-existing bronchitis; or 3) that Olafson was disabled by the recurrent pain of the unhealed fractured ribs. The superior court found that Olafson suffered broken ribs and severe pain as a result of the accident and that Olafson's injuries caused a loss in his future earning capacity. In our opinion the superior court's findings regarding Olafson's disability are stated with sufficient specificity to satisfy the requirements of Civil Rule 52.
 Dr. Halter conducted several examinations of Olafson. On the basis of his examinations, including X-rays, he testified that Olafson's rib fractures had not healed properly and that considering Olafson's age they would not heal in the future. Dr. Halter stated that Olafson complained of pain, that this pain was caused by the unhealed ribs and that they could prevent him from resuming his normal activities. Dr. Halter further testified that he could not state whether Olafson's prior bronchitis was severe enough to disable Olafson but that it was probably aggravated by the rib fractures.
[O]ne which leaves the supreme court with a definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding.
Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978), quoting Frontier Saloon, Inc. v. Short, 557 P.2d 779, 781-82 (Alaska 1976) (per curiam).
 Grothe also contends that additional expert testimony was needed to relate Olafson's rib fractures to his alleged disability and that there was not any specific expert testimony establishing a connection between this rib injury and the disability. In our view, Grothe's claim that there was no expert testimony connecting Olafson's rib injuries to his reduced earning capacity is a reiteration of his argument that the bronchitis is the source of Olafson's disability and that there was insufficient evidence to demonstrate that the rib fractures aggravated the bronchitis. Inherent in our conclusion that the superior court's findings pertaining to Olafson's disability were not clearly erroneous is our conclusion that Dr. Halter's expert testimony established the requisite evidentiary base for the court's findings relating to disability.
Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)... .


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matches: V. V. V. V. V. v. V.


text:
A county regulation limiting the length of county policemen's hair held not to violate any right guaranteed respondent policeman by the Fourteenth Amendment. Pp. 244-249.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 249. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, [425 U.S. 238, 239] post, p. 249. STEVENS, J., took no part in the consideration or decision of the case.
[ Footnote * ] James vanR. Springer filed a brief for the International Brotherhood of Police Officers as amicus curiae urging affirmance.
In 1971 respondent's predecessor, individually and as president of the Suffolk County Patrolmen's Benevolent Association, brought this action under the Civil Rights Act of 1871, 42 U.S.C. 1983, against petitioner's predecessor, the Commissioner of the Suffolk County Police Department. The Commissioner had promulgated Order No. 71-1, which established hair-grooming standards applicable to male members of the police force. 1 The [425 U.S. 238, 240] regulation was directed at the style and length of hair, sideburns, and mustaches; beards and goatees were prohibited, except for medical reasons; and wigs conforming to the regulation could be worn for cosmetic reasons. The regulation was attacked as violative of respondent patrolman's right of free expression under the First Amendment and his guarantees of due process and equal [425 U.S. 238, 241] protection under the Fourteenth Amendment, in that it was "not based upon the generally accepted standard of grooming in the community" and placed "an undue restriction" upon his activities therein.
The Court of Appeals held that cases characterizing the uniformed civilian services as "para-military," and sustaining hair regulations on that basis, were not soundly grounded historically. 2 It said that the fact that a police force is organized "with a centralized administration and a disciplined rank and file for efficient conduct of its affairs" did not foreclose respondent's claim, but instead bore only upon "the existence of a legitimate state interest to be reasonably advanced by the regulation." Dwen v. Barry, 483 F.2d 1126, 1128-1129 (1973). The Court of Appeals went on to decide that "choice of personal appearance is an ingredient of an individual's personal liberty" 3 and is protected by the Fourteenth Amendment. It further held that the police department had "failed to make the slightest showing of the relationship between its regulation and the legitimate interest it sought to promote." Id., at 1130-1131. On the basis of this reasoning it concluded that neither dismissal nor summary judgment in the District Court was appropriate, since the department "has the burden of establishing [425 U.S. 238, 242] a genuine public need for the regulation." Id., at 1131.
Thereafter the District Court, under the compulsion of the remand from the Court of Appeals, took testimony on the question of whether or not there was a "genuine public need." The sole witness was the Deputy Commissioner of the Suffolk County Police Department, petitioner's subordinate, who testified as to the police department's concern for the safety of the patrolmen, and the need for some standards of uniformity in appearance. 4 The District Court held that "[n]o proof" was offered to support any claim of the need for the protection of the police officer, and that while "proper grooming" is an ingredient of a good police department's esprit de [425 U.S. 238, 243] corps, petitioner's standards did not establish a public need because they ultimately reduced to "[u]niformity for uniformity's sake." 5 The District Court granted the [425 U.S. 238, 244] relief prayed for by respondent, and on petitioner's appeal that judgment was affirmed without opinion by the Court of Appeals. 508 F.2d 836.
This section affords not only a procedural guarantee against the deprivation of "liberty," but likewise protects substantive aspects of liberty against unconstitutional restrictions by the State. Board of Regents v. Roth, 408 U.S. 564, 572 (1972); Griswold v. Connecticut, 381 U.S. 479, 502 (1965) (WHITE, J., concurring).
The "liberty" interest claimed by respondent here, of course, is distinguishable from the interests protected by the Court in Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Griswold v. Connecticut, supra; and Meyer v. Nebraska, 262 U.S. 390 (1923). Each of those cases involved a substantial claim of infringement on the individual's freedom of choice with respect to certain basic matters of procreation, marriage, and family life. But whether the citizenry at large has some sort of "liberty" interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any, guidance. We can, nevertheless, assume an affirmative answer for purposes of deciding this case, because we find that assumption insufficient to carry the day for respondent's claim.
Respondent has sought the protection of the Fourteenth [425 U.S. 238, 245] Amendment, not as a member of the citizenry at large, but on the contrary as an employee of the police department of Suffolk County, a subdivision of the State of New York. While the Court of Appeals made passing reference to this distinction, it was thereafter apparently ignored. We think, however, it is highly significant. In Pickering v. Board of Education, 391 U.S. 563, 568 (1968), after noting that state employment may not be conditioned on the relinquishment of First Amendment rights, the Court stated that "[a]t the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." More recently, we have sustained comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment. CSC v. Letter Carriers, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413 U.S. 601 (1973). If such state regulations may survive challenges based on the explicit language of the First Amendment, there is surely even more room for restrictive regulations of state employees where the claim implicates only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment.
The hair-length regulation here touches respondent as an employee of the county and, more particularly, as a policeman. Respondent's employer has, in accordance with its well-established duty to keep the peace, placed myriad demands upon the members of the police force, duties which have no counterpart with respect to the public at large. Respondent must wear a standard uniform, specific in each detail. 6 When in uniform he must [425 U.S. 238, 246] salute the flag. 7 He may not take an active role in local political affairs by way of being a party delegate or contributing or soliciting political contributions. 8 He may not smoke in public. 9 All of these and other regulations 10 of the Suffolk County Police Department infringe on respondent's freedom of choice in personal matters, and it was apparently the view of the Court of Appeals that the burden is on the State to prove a "genuine public need" for each and every one of these regulations.
This view was based upon the Court of Appeals' reasoning that the "unique judicial deference" accorded by the judiciary to regulation of members of the military was inapplicable because there was no historical or functional justification for the characterization of the police as "para-military." But the conclusion that such cases are inapposite, however correct, in no way detracts from the deference due Suffolk County's choice of an organizational structure for its police force. Here the county has chosen a mode of organization which it undoubtedly deems the most efficient in enabling its police to carry out the duties assigned to them under state and local law. 11 Such a choice necessarily gives weight to the overall need for discipline, esprit de corps, and uniformity.
The county's choice of an organizational structure, therefore, does not depend for its constitutional validity on any doctrine of historical prescription. Nor, indeed, has respondent made any such claim. His argument does [425 U.S. 238, 247] not challenge the constitutionality of the organizational structure, but merely asserts that the present hair-length regulation infringes his asserted liberty interest under the Fourteenth Amendment. We believe, however, that the hair-length regulation cannot be viewed in isolation, but must be rather considered in the context of the county's chosen mode of organization for its police force.
The promotion of safety of persons and property is unquestionably at the core of the State's police power, and virtually all state and local governments employ a uniformed police force to aid in the accomplishment of that purpose. Choice of organization, dress, and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State's police power. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952); Prince v. Massachusetts, 321 U.S. 158, 168 -170 (1944); Olsen v. Nebraska, 313 U.S. 236, 246 -247 (1941). Having recognized in other contexts the wide latitude accorded the government in the "dispatch of its own internal affairs," Cafeteria Workers v. McElroy, 367 U.S. 886, 896 (1961), we think Suffolk County's police regulations involved here are entitled to similar weight. Thus the question is not, as the Court of Appeals conceived it to be, whether the State can "establish" a "genuine public need" for the specific regulation. It is whether respondent can demonstrate that there is no rational connection between the regulation, based as it is on the county's method of organizing its police force, and the promotion of safety of persons and property. United Public Workers v. Mitchell, 330 U.S. 75, 100 -101 (1947); Jacobson v. Massachusetts, 197 U.S. 11, 30 -31, 35-37 (1905).
We think the answer here is so clear that the District Court was quite right in the first instance to have dismissed [425 U.S. 238, 248] respondent's complaint. Neither this Court, the Court of Appeals, nor the District Court is in a position to weigh the policy arguments in favor of and against a rule regulating hairstyles as a part of regulations governing a uniformed civilian service. The constitutional issue to be decided by these courts is whether petitioner's determination that such regulations should be enacted is so irrational that it may be branded "arbitrary," and therefore a deprivation of respondent's "liberty" interest in freedom to choose his own hairstyle. Williamson v. Lee Optical Co., 348 U.S. 483, 487 -488 (1955). The overwhelming majority of state and local police of the present day are uniformed. This fact itself testifies to the recognition by those who direct those operations, and by the people of the States and localities who directly or indirectly choose such persons, that similarity in appearance of police officers is desirable. This choice may be based on a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself. Either one is a sufficiently rational justification for regulations so as to defeat respondent's claim based on the liberty guarantee of the Fourteenth Amendment.
The Court of Appeals relied on Garrity v. New Jersey, 385 U.S. 493 (1967), and amicus in its brief in support of respondent elaborates an argument based on the language in Garrity that "policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights." Id., at 500. Garrity, of course, involved the protections afforded by the Fifth Amendment to the United States Constitution as made applicable to the States by the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1 (1964). Certainly its language cannot be taken to suggest that the claim of a member [425 U.S. 238, 249] of a uniformed civilian service based on the "liberty" interest protected by the Fourteenth Amendment must necessarily be treated for constitutional purposes the same as a similar claim by a member of the general public.
I concur in the opinion of the Court and write to make clear that, contrary to the concern expressed in the dissent, I find no negative implication in the opinion with respect to a liberty interest within the Fourteenth Amendment as to matters of personal appearance. See Poe v. Ullman, 367 U.S. 497, 541 -543 (1961) (Harlan, J., dissenting). When the State has an interest in regulating one's personal appearance, as it certainly does in this case, there must be a weighing of the degree of infringement of the individual's liberty interest against the need for the regulation. This process of analysis justifies the application of a reasonable regulation to a uniformed police force that would be an impermissible intrusion upon liberty in a different context.
[ Footnote 2 ] E. g., Stradley v. Andersen, 478 F.2d 188 (CA8 1973); Greenwald v. Frank, 40 App. Div. 2d 717, 337 N. Y. S. 2d 225 (1972), aff'd without opinion, 32 N. Y. 2d 862, 299 N. E. 2d 895 (1973). The District Court's dismissal was based on cases upholding the discretionary power of the military and National Guard to regulate a soldier's hair length. See Gianatasio v. Whyte, 426 F.2d 908 (CA2), cert. denied, 400 U.S. 941 (1970); Raderman v. Kaine, 411 F.2d 1102 (CA2), cert. dismissed, 396 U.S. 976 (1969).
[ Footnote 3 ] 483 F.2d, at 1130. While it recognized the distinction between citizens and uniformed employees of police and fire departments, the Court of Appeals stated that the individual's status did not bear on the existence of his right but on whether the right was outweighed by a legitimate state interest. Id., at 1130 n. 9.
While noting Rapp's testimony that uniformity was required for identification, the District Court stated: "It would appear, however, [425 U.S. 238, 244] that the uniform (issued by the department) supplies the necessary identification for police work."
[ Footnote 6 ] Rules and Procedures 4/1.0-4/1.3.
[ Footnote 7 ] Id., 6/2.2.
[ Footnote 8 ] Id., 2/2.5.
[ Footnote 9 ] Id., 2/5.1.
[ Footnote 10 ] See, e. g., id., 2/14.0 et seq. (Code of Ethics).
[ Footnote 11 ] The Court of Appeals itself found that while there was no desire on the part of local governments like Suffolk County to create a "military force," "[t]he use of such organization evolved as a practical administrative solution . . . ." 483 F.2d, at 1128-1129 (emphasis added).
The Court today upholds the constitutionality of Suffolk County's regulation limiting the length of a policeman's [425 U.S. 238, 250] hair. While the Court only assumes for purposes of its opinion that "the citizenry at large has some sort of `liberty' interest within the Fourteenth Amendment in matters of personal appearance . . .," ante, at 244, I think it clear that the Fourteenth Amendment does indeed protect against comprehensive regulation of what citizens may or may not wear. And I find that the rationales offered by the Court to justify the regulation in this case are insufficient to demonstrate its constitutionality. Accordingly, I respectfully dissent.
As the Court recognizes, the Fourteenth Amendment's guarantee against the deprivation of liberty "protects substantive aspects of liberty against unconstitutional restrictions by the State." Ante, at 244. And we have observed that "[l]iberty under law extends to the full range of conduct which the individual is free to pursue." Bolling v. Sharpe, 347 U.S. 497, 499 (1954). See also Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting). 1 It seems to me manifest that that "full range of conduct" must encompass one's interest in dressing according to his own taste. An individual's personal appearance may reflect, sustain, and nourish his personality and may well be used as a means of expressing his [425 U.S. 238, 251] attitude and lifestyle. 2 In taking control over a citizen's personal appearance, the government forces him to sacrifice substantial elements of his integrity and identity as well. To say that the liberty guarantee of the Fourteenth Amendment does not encompass matters of personal appearance would be fundamentally inconsistent with the values of privacy, self-identity, autonomy, and personal integrity that I have always assumed the Constitution was designed to protect. See Roe v. Wade, 410 U.S. 113 (1973); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
"If the committee were governed by that general [425 U.S. 238, 252] principle . . . they might have declared that a man should have a right to wear his hat if he pleased . . . but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed." Id., at 54-55 (emphasis added).
"The right to travel is a part of the `liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . It may be as close to the heart of the individual as the choice [425 U.S. 238, 253] of what he eats, or wears, or reads." Kent v. Dulles, 357 U.S. 116, 125 126 (1958) (emphasis added).
As for the first justification offered by the Court, I simply do not see how requiring policemen to maintain hair of under a certain length could rationally be argued to contribute to making them identifiable to the public as policemen. Surely, the fact that a uniformed police officer is wearing his hair below his collar will make him [425 U.S. 238, 255] no less identifiable as a policeman. And one cannot easily imagine a plainclothes officer being readily identifiable as such simply because his hair does not extend beneath his collar.
The Court cautions us not to view the hair-length regulation in isolation, but rather to examine it "in the context of the county's chosen mode of organization for its police force." Ante, at 247. While the Court's caution is well taken, one should also keep in mind, as I fear the Court does not, that what is ultimately under scrutiny is neither the overall structure of the police force nor the uniform and equipment requirements to which its members are subject, but rather the regulation which dictates acceptable hair lengths. The fact that the uniform requirement, for instance, may be rationally related to the goals of increasing police officer "identifiability" and the maintenance of esprit de corps does absolutely nothing to establish the legitimacy of the hair-length regulation. I see no connection between the regulation and the offered rationales 8 and would accordingly affirm the judgment of the Court of Appeals.
[ Footnote 1 ] We have held that the Constitution's protection of liberty encompasses the interest of parents in having their children learn German, Meyer v. Nebraska, 262 U.S. 390 (1923); the interest of parents in being able to send their children to private as well as public schools, Pierce v. Society of Sisters, 268 U.S. 510, 534 -535 (1925); the interest of citizens in traveling abroad, Kent v. Dulles, 357 U.S. 116, 125 (1958); Aptheker v. Secretary of State, 378 U.S. 500, 505 (1964); the interest of a woman in deciding whether or not to terminate her pregnancy, Roe v. Wade, 410 U.S. 113, 153 (1973); and the interest of a student in the damage to his reputation caused by a 10-day suspension from school. Goss v. Lopez, 419 U.S. 565, 574 -575 (1975).
[ Footnote 2 ] While the parties did not address any First Amendment issues in any detail in this Court, governmental regulation of a citizen's personal appearance may in some circumstances not only deprive him of liberty under the Fourteenth Amendment but violate his First Amendment rights as well. Tinker v. Des Moines School Dist., 393 U.S. 503 (1969).
[ Footnote 3 ] There has been a substantial amount of lower-court litigation concerning the constitutionality of hair-length and dress-code regulations as applied to schoolchildren. Some of the cases have found the rationales offered for such regulations to be sufficient to support their constitutionality. See, e. g., King v. Saddleback Junior College Dist., 445 F.2d 932 (CA9), cert. denied, 404 U.S. 979 (1971); Gfell v. Rickelman, 441 F.2d 444 (CA6 1971); Ferrell v. Dallas Independent School Dist., 392 F.2d 697 (CA5), cert. denied. 393 U.S. 856 (1968). Other cases have found similar regulations unconstitutional. See, e. g., Richards v. Thurston, 424 F.2d 1281 (CA1 1970); Breen v. Kahl, 419 F.2d 1034 (CA7 1969), cert. denied, 398 U.S. 937 (1970). None of the cases, however, have indicated that the Constitution may offer no protection at all against comprehensive regulation of the personal appearance of the citizenry at large.
[ Footnote 4 ] History is dotted with instances of governments regulating the personal appearance of their citizens. For instance, in an effort to stimulate his countrymen to adopt a modern lifestyle, Peter the Great issued an edict in 1698 regulating the wearing of beards throughout Russia. W. & A. Durant, The Age of Louis XIV, p. 398 (1963). Anyone who wanted to grow a beard had to pay an annual tax of from one kopek for a peasant to one hundred rubles for a rich merchant. Ibid. Of those who could not afford the "beard tax," there were many "who, after having their beards shaved off, saved them preciously, in order to have them placed in their coffins, fearing that they would not be allowed to enter heaven without them." J. Robinson, Readings in European History 390 (1906).
There are more recent instances, too, of governments regulating the personal appearance of their citizens. See, e. g., N. Y. Times, Feb. 18, 1974, p. 22, col. 4 (Czech police stop long-haired young men, telling them to get haircuts); id., July 23, 1972, p. 4, col. 1 (Libyan Government tells youths to trim hair and wear more sober clothes or submit themselves for training in the army); id., July 7, 1971, p. 22, col. 8 (over 1,000 young men rounded up and given haircuts by South Korean police in what was described by government officials as a "social purification" campaign); id., Oct. 13, 1970, p. 11, col. 1 (police force more than 1,400 South Vietnamese youths to cut [425 U.S. 238, 254] their hair). It is inconceivable to me that the Constitution would offer no protection whatsoever against the carrying out of similar actions by either our Federal or State Governments.
[ Footnote 5 ] A policeman does not surrender his right in his own personal appearance simply by joining the police force. See Tinker v. Des Moines School Dist., 393 U.S., at 506 . I agree with the Court of Appeals that the "status of the individual raising the claim bears [not on the existence of the right, but rather] on the question of whether the right is outweighed by a legitimate state interest." 483 F.2d, at 1130 n. 9. Thus, the need to evaluate the governmental interest and the connection between it and the challenged governmental action is as present when the party whose rights have allegedly been violated is a public employee as when he is a private employee. See CSC v. Letter Carriers, 413 U.S. 548, 564 -567 (1973). To hold that citizens somehow automatically give up constitutional rights by becoming public employees would mean that almost 15 million American citizens are currently affected by having "executed" such "automatic waivers." Statistical Abstract of the United States 1975, p. 272.
[ Footnote 6 ] Nor, to say the least, is the esprit de corps argument bolstered by the fact that the International Brotherhood of Police Officers, a 25,000-member union representing uniformed police officers, has filed a brief as amicus curiae arguing that the challenged regulation is unconstitutional.
[ Footnote 7 ] The regulation itself eschews what would appear to be a less intrusive means of achieving similarity in the hair length of on-duty officers. According to the regulation, a policeman cannot comply with the hair-length requirements by wearing a wig with hair of the proper length while on duty. The regulation prohibits the wearing of wigs or hairpieces "on duty in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration." Ante, at 240 n. 1. Thus, while the regulation in terms applies to grooming standards of policemen while on duty, the hair-length provision effectively controls both on-duty and off-duty appearance.

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Vernon's Texas Statutes and Codes Annotated. Government Code. Title 6. Public Officers and Employees. Subtitle B. State Officers and Employees Chapter 661. Leave. Subchapter Z. Miscellaneous Leave Provisions for State Employees.
Vernon's Texas Statutes and Codes Annotated. Human Resources Code. Title 8. Rights and Responsibilities of Persons with Disabilities. Chapter 121. Participation in Social and Economic Activities.
Vernon's Texas Statutes and Codes Annotated. Penal Code. Title 9. Offenses Against Public Order and Decency. Chapter 42. Disorderly Conduct and Related Offenses.
(a) A state employee who is a person with a disability, as defined by Section 121.002, Human Resources Code, is entitled to a leave of absence without a deduction in salary for the purpose of attending a training program to acquaint the employee with an assistance dog to be used by the employee.
(b) The leave of absence provided by this section may not exceed 10 working days in a fiscal year.
Added by Acts 1999, 76th Leg., ch. 279, § 19, eff. Sept. 1, 1999.
(1) “Assistance animal” and “service animal” mean a canine that is specially trained or equipped to help a person with a disability and that is used by a person with a disability .
(B) places a person with a disability who is using an assistance animal, or a trainer who is training an assistance animal, in danger of injury.
(3) “Housing accommodations” means all or part of real property that is used or occupied or is intended, arranged, or designed to be used or occupied as the home, residence, or sleeping place of one or more human beings, except a single-family residence whose occupants rent, lease, or furnish for compensation only one room.
(H) any health impairment that requires special ambulatory devices or services.
(5) “Public facility ” includes a street, highway, sidewalk, walkway, common carrier, airplane, motor vehicle, railroad train, motor bus, streetcar, boat, or any other public conveyance or mode of transportation; a hotel, motel, or other place of lodging; a public building maintained by any unit or subdivision of government; a retail business, commercial establishment, or office building to which the general public is invited; a college dormitory or other educational facility; a restaurant or other place where food is offered for sale to the public; and any other place of public accommodation, amusement, convenience, or resort to which the general public or any classification of persons from the general public is regularly, normally, or customarily invited.
(6) “White cane” means a cane or walking stick that is metallic or white in color, or white tipped with a contrasting color, and that is carried by a blind person to assist the blind person in traveling from place to place.
Acts 1979, 66th Leg., p. 2425, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 3310, ch. 865, § 1, eff. Aug. 31, 1981; Acts 1985, 69th Leg., ch. 278, § 1, eff. June 5, 1985; Acts 1995, 74th Leg., ch. 890, § 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 649, § 3, eff. Sept. 1, 1997; Acts 2013, 83rd Leg., ch. 838 (H.B. 489), § 2, eff. Jan. 1, 2014.
(a) Persons with disabilities have the same right as persons without disabilities to the full use and enjoyment of any public facility in the state.
(b) No common carrier, airplane, railroad train, motor bus, streetcar, boat, or other public conveyance or mode of transportation operating within the state may refuse to accept as a passenger a person with a disability because of the person's disability, nor may a person with a disability be required to pay an additional fare because of his or her use of a service animal, wheelchair, crutches, or other device used to assist a person with a disability in travel.
(3) provide auxiliary aids and services necessary to allow the full use and enjoyment of the public facility.
(e) Regulations relating to the use of public facilities by any designated class of persons from the general public may not prohibit the use of particular public facilities by persons with disabilities who, except for their disabilities or use of assistance animals or other devices for assistance in travel, would fall within the designated class.
(f) It is the policy of the state that persons with disabilities be employed by the state, by political subdivisions of the state, in the public schools, and in all other employment supported in whole or in part by public funds on the same terms and conditions as persons without disabilities, unless it is shown that there is no reasonable accommodation that would enable a person with a disability to perform the essential elements of a job.
(g) Persons with disabilities shall be entitled to full and equal access, as other members of the general public, to all housing accommodations offered for rent, lease, or compensation in this state, subject to the conditions and limitations established by law and applicable alike to all persons.
(h) A person with a total or partial disability who has or obtains a service animal is entitled to full and equal access to all housing accommodations provided for in this section, and may not be required to pay extra compensation or make a deposit for the animal but is liable for damages done to the premises by the animal except for reasonable wear and tear.
(j) A person may not assault, harass, interfere with, kill, or injure in any way, or attempt to assault, harass, interfere with, kill, or injure in any way, an assistance animal.
(k) Except as provided by Subsection (l), a person is not entitled to make demands or inquiries relating to the qualifications or certifications of a service animal for purposes of admittance to a public facility except to determine the basic type of assistance provided by the service animal to a person with a disability.
Acts 1979, 66th Leg., p. 2426, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 3310, ch. 865, § 2, eff. Aug. 31, 1981; Acts 1983, 68th Leg., 1st C.S., p. 57, ch. 7, § 10.03(c), eff. Sept. 23, 1983; Acts 1985, 69th Leg., ch. 278, § 2, eff. June 5, 1985; Acts 1989, 71st Leg., ch. 249, § 1, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 890, § 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 649, § 4, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 261, § 1, eff. May 22, 2001; Acts 2003, 78th Leg., ch. 710, § 1, eff. Sept. 1, 2003; Acts 2013, 83rd Leg., ch. 838 (H.B. 489), § 3, eff. Jan. 1, 2014; Acts 2015, 84th Leg., ch. 1 (S.B. 219), § 4.416, eff. April 2, 2015.
(2) 30 hours of community service to be performed for a governmental entity or nonprofit organization that primarily serves persons with visual impairments or other disabilities, or for another entity or organization at the discretion of the court, to be completed in not more than one year.
(b) In addition to the penalty provided in Subsection (a), a person, including a firm, association, corporation, or other public or private organization, or the agent of the person, who violates the provisions of Section 121.003 is deemed to have deprived a person with a disability of his or her civil liberties. Subject to Section 121.0041, if applicable, the person with a disability deprived of his or her civil liberties may maintain an action for damages in a court of competent jurisdiction, and there is a conclusive presumption of damages in the amount of at least $300 to the person with a disability.
Acts 1979, 66th Leg., p. 2427, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1995, 74th Leg., ch. 890, § 3, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 649, § 5, eff. Sept. 1, 1997; Acts 2013, 83rd Leg., ch. 838 (H.B. 489), § 4, eff. Jan. 1, 2014; Acts 2017, 85th Leg., ch. 342 (H.B. 1463), § 1, eff. Sept. 1, 2017.
(1) “Claimant” means a person filing or intending to file an action under Section 121.004(b).
(2) “Respondent” means the person against whom a claimant files or intends to file an action under Section 121.004(b).
(b) This section applies only to an action under Section 121.004(b) alleging a failure to comply with applicable design, construction, technical, or similar standards required under Chapter 469, Government Code, or other applicable state or federal laws that require compliance with specified design, construction, technical, or similar standards, including Internet website accessibility guidelines, to accommodate persons with disabilities.
(2) may not demand a sum of damages, request settlement, or offer to settle the claim without a determination of whether a condition stated in the notice is excused by law or may be remedied.
(d) A respondent who has received a written notice under Subsection (c) may correct the alleged violation before the earliest date on which the claimant may file the action.
(e) A respondent who has corrected an alleged violation shall provide a notice of the correction to the claimant that describes each correction and the manner in which the correction addresses the alleged violation. If the respondent concludes that an alleged violation has not occurred and that a correction is not necessary, the respondent shall provide the claimant an explanation of the respondent's conclusion. The notice of correction or explanation may be given in a manner prescribed for service of process in a civil action.
(f) If a claimant files an action to which this section applies, the claimant must establish by a preponderance of the evidence that the respondent has not corrected one or more of the alleged violations stated in the written notice provided under Subsection (c).
(3) the corrections will be completed by the end of the period of abatement.
(2) the respondent may file a motion for summary judgment in accordance with the Texas Rules of Civil Procedure.
Added by Acts 2017, 85th Leg., ch. 342 (H.B. 1463), § 2, eff. Sept. 1, 2017.
(a) A person with a disability who uses an assistance animal for assistance in travel is liable for any damages done to the premises or facilities by the animal.
(b) A person with a disability who uses an assistance animal for assistance in travel or auditory awareness shall keep the animal properly harnessed or leashed, and a person who is injured by the animal because of the failure of a person with a disability to properly harness or leash the animal is entitled to maintain a cause of action for damages in a court of competent jurisdiction under the same law applicable to other causes brought for the redress of injuries caused by animals.
Acts 1979, 66th Leg., p. 2427, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 3310, ch. 865, § 3, eff. Aug. 31, 1981; Acts 1985, 69th Leg., ch. 278, § 3, eff. June 5, 1985; Acts 1997, 75th Leg., ch. 649, § 6, eff. Sept. 1, 1997.
(b) A person who habitually abuses or neglects to feed or otherwise neglects to properly care for his or her assistance animal is subject to seizure of the animal under Subchapter B, Chapter 821, [FN1] Health and Safety Code.
Acts 1979, 66th Leg., p. 2427, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1981, 67th Leg., p. 3311, ch. 865, § 4, eff. Aug. 31, 1981; Acts 1985, 69th Leg., ch. 278, § 4, eff. June 5, 1985; Acts 1997, 75th Leg., ch. 649, § 7, eff. Sept. 1, 1997; Acts 2013, 83rd Leg., ch. 838 (H.B. 489), § 5, eff. Jan. 1, 2014.
[FN1] V.T.C.A., Health and Safety Code § 821.021 et seq.
(a) To ensure maximum public awareness of the policies set forth in this chapter, the governor shall issue a proclamation each year taking suitable public notice of October 15 as White Cane Safety and Service Animal Recognition Day. The proclamation must contain appropriate comment about the significance of various devices and animals used by persons with disabilities to assist them in traveling, and must call to the attention of the public the provisions of this chapter and of other laws relating to the safety and well-being of this state's citizens with disabilities.
(b) The comptroller, the secretary of state, and other state agencies that regularly mail forms or information to significant numbers of public facilities and businesses operating within the state shall cooperate with state agencies responsible for the rehabilitation of persons with disabilities by sending information about this chapter to those to whom regular mailings are sent. The information, which must be sent at the request of state agencies responsible for the rehabilitation of persons with disabilities and at least once each year, may be included in regular mailings or sent separately. If sent separately, the cost of mailing is borne by the state rehabilitation agency or agencies requesting the mailing and, regardless of whether sent separately or as part of a regular mailing, the cost of preparing information about this chapter is borne by the state rehabilitation agency or agencies requesting distribution of this information.
Acts 1979, 66th Leg., p. 2428, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1997, 75th Leg., ch. 649, § 9, eff. Sept. 1, 1997; Acts 2013, 83rd Leg., ch. 838 (H.B. 489), § 6, eff. Jan. 1, 2014.
Vernon's Texas Statutes and Codes Annotated. Transportation Code. Title 7. Vehicles and Traffic. Subtitle C. Rules of the Road. Chapter 552. Pedestrians.
(2) “White cane” has the meaning assigned by Section 121.002, Human Resources Code.
Acts 1979, 66th Leg., p. 2428, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1985, 69th Leg., ch. 278, § 5, eff. June 5, 1985; Acts 1997, 75th Leg., ch. 649, § 8, eff. Sept. 1, 1997. Renumbered from V.T.C.A., Human Resources Code § 121.007 and amended by Acts 2009, 81st Leg., ch. 1272, § 1, eff. Sept. 1, 2009.
(2) "Custody" has the meaning assigned by Section 42. 09.
Added by Acts 2001, 77th Leg., ch. 979, § 1, eff. Sept. 1, 2001. Amended by Acts 2007, 80th Leg., ch. 1331, § 5, eff. Sept. 1, 2007.
(2) what type of work the service animal is trained to perform.
(6) calming a person who has post-traumatic stress disorder.
Added by Acts 2013, 83rd Leg., ch. 838 (H.B. 489), § 1, eff. Jan. 1, 2014.

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