Del. Court: Employee Horseplay May Fall Outside Workers’ Comp Law

July 12, 2007

A Delaware oil refinery worker injured in a practical joke by his co-workers may be allowed to sue them, the state Supreme Court has ruled.

Stephen Grabowski was injured in October 2000 when three co-workers grabbed him in a bathroom at the Delaware City refinery, forced him to the ground and wrapped him from ankles to shoulders in duct tape. Grabowski suffered injuries that required surgery on his lower back and right knee, as well as post-traumatic stress that required counseling.

While a worker injured while horsing around on the job generally is precluded from receiving workers compensation, a Superior Court judge ruled that Grabowski was entitled to benefits because he was a “nonparticipating victim” of horseplay by his co-workers.

While Grabowski has received more than $300,000 in workers compensation for his injuries, the judge said he could not pursue a negligence claim against William Mangler, David Smith and Joseph Ziemba because he was injured during the course of his employment.

All four men worked as pipefitters and welders for J.J. White at the Delaware City oil refinery, according to court records. While J.J. White had rules forbidding horseplay, the men often engaged in antics such as filling hard hats with water, taping lunch boxes shut, and at least one previous incident of a worker being covered in duct tape.

Under state law, workers’ compensation usually is the exclusive remedy for a job injury. Grabowski argued that he was injured outside the scope of his normal job duties, and that the workers’ compensation law does not preclude a tort claim under those circumstances.

In remanding the case this week, the state Supreme Court said that in granting summary judgment to the three defendants, the trial judge had failed to analyze sufficiently whether their actions constituted horseplay that was outside the course and scope of employment.

“Workers’ compensation may be a plaintiff’s exclusive remedy in some instances of co-employee horseplay if the co-employee’s actions are within the course and scope of employment,” Chief Justice Myron Steele wrote for a three-judge panel. “There are some instances, however, where co-employees’ horseplay may be so unreasonable and so unexpected that it is not within the co-employees’ course and scope of employment. Under these circumstances, a claimant may bring a private tort action against his co-employee(s).”

The court directed that the trial judge examine the case using criteria suggested by the late Duke University law professor Arthur Larson, an expert on workers’ compensation law. In doing so, the court adopted the so-called “Larson test” for the first time.

The criteria Larson suggested in examining whether horseplay deviates substantially from the normal course of duties and thus opens the door to a potential tort claim includes the extent and seriousness of the deviation, whether it was mixed with work or involved an abandonment of job duties, the extent to which it was an accepted part of the job, and the extent to which the job might be expected to include some horseplay.

“If the primary test in horseplay cases is deviation from the employment, the question whether the horseplay involved the dropping of active duties calling for claimant’s attention as distinguished from the mere killing of time while claimant had nothing to do assumes considerable importance,” Larson wrote. “There are two reasons for this: first, if there were no duties to be performed, there were none to be abandoned; and second, it is common knowledge, embodied in more than old saw, that idleness breeds mischief, so that if idleness is a fixture of the employment, its handmaiden is mischief also.”

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