Under law if an employee steps aside from the duties of his employment to engage in horseplay or practical joking, or so engages while performing his duties, and an accidental injury results, the resulting injury is not compensable.
Under law if an employee steps aside from the duties of his employment to engage in horseplay or practical joking, or so engages while performing his duties, and an accidental injury results, the resulting injury is not compensable. Bibb Manufacturing Company v. Cowan, 85 App. 816 (1952). This is especially true when the injured employee is the aggressor or instigator of the horseplay, American Fire and Casualty Company v. Gay, 104 App. 840 (1961), but it is also true when the injury is a result of a continued course of conduct even if the injured employee is not the aggressor in the particular incident which caused the injury. Knight v. Liberty Mutual Insurance Company, 141 App. 409 (1977). The courts have not defined exactly what constitutes such “horseplay” as to place an employee outside the scope and course of his or her employment, rather the courts have simply treated it as a question of fact to be decided on a case by case basis.
However, in Grabowski v. Mangler, et al., No. 65, 2007 (7/1/2007), the Supreme Court of Delaware allowed one employee to sue his fellow employees for injuries sustained as a result of horseplay. In that case, the Delaware Supreme Court adopted the test outlined by Professor Larson to determine whether an employee may bring a cause of action against co-workers whose horseplay causes him to sustain bodily injuries, despite the exclusive remedy provision of the state workers’ compensation statute. The Delaware Supreme Court found that the trial judge must apply Professor Larson’s test which focuses on the following factors:
(1) the nature and degree of the deviation;
(2) whether the defendant was in any way performing his duties or had wholly abandoned them (for example, whether it was mingled with the performance of duty or involved in abandonment of duty);
(3) whether the horseplay in question had become an accepted part of the employment; and
(4) the extent to which the nature of the employment may be expected to include some horseplay.
In the Grawbowski case, the claimant/plaintiff and three co-workers all worked as pipe fitters and welders for JJ White at the Delaware City Oil Refinery jobsite. JJ White had rules forbidding horseplay at their jobsite and all of the employees involved knew of these rules. However, although it was against JJ White’s rules, employees often engaged in horseplay and practical jokes because of long periods of down time and inactivity between projects. Examples of past horseplay incidents included taping lunch boxes shut and filling hard hats with water.
On October 16, 2000, three co-workers detained Grabowski in a bathroom, brought him to the ground, and wrapped him from ankles to shoulders in duct tape. As a result, Grabowski suffered both physical injuries, which required surgery on his lower back and right knee, and post traumatic stress, which required counseling. He subsequently filed a workers’ compensation claim against JJ White and received medical and indemnity benefits under ’s workers’ compensation law.
Additionally, Grabowski filed a third party civil action against all three of his co-workers alleging that they caused his injuries and sought compensatory damages. All three co-workers filed for summary judgment which was granted by the trial judge but subsequently reversed on appeal by the Supreme Court.
The trial court dismissed Grabowski’s third party action, finding that the exclusive remedy provision of the workers’ compensation law barred his suit. On appeal, he argued that the defense was inapplicable because his injuries were sustained outside the scope of his employment. The Delaware Supreme Court agreed and held that if the horseplay is sufficiently extreme to occur outside the scope of the defendant’s employment, the third party action may proceed. The court’s decision expanded the liability of potential defendants as it would permit two causes of actions, one against the employer under the workers’ compensation umbrella and another against the co-workers in a third party action.
The irony in the Grabowski decision lies in the fact that the claimant/plaintiff will have to allege in the workers’ compensation case, that his injuries occurred within the course and scope of his employment. However, in the third party civil action, he will have to change the allegations and argue that his injuries occurred outside the course and scope of his employment. Therefore, since the two actions may be unable to co-exist, it is likely that injured workers in Delaware will not bring third party actions very often rather, seeking to pursue their causes of action under the workers’ compensation setting. Additionally, while the Grabowskidecision gives claimants/plaintiffs two avenues in which to proceed, realistically their best chance of recovery would be against the workers’ compensation insurance carrier rather than a co-worker who would in all likelihood be judgment proof. This may not always be the case because if a potential co-worker/defendant has homeowners insurance, they could ask their insurer to provide a defense.
While the Grabowski decision obviously does not apply in , its result shows the ironic situation that a claimant/plaintiff would be put if he were to try and proceed against both his employer and a co-worker in a case involving horseplay.