A new test for workplace 'horseplay'

Sheri Qualters| Staff Reporter
July 16, 2007

The Delaware Supreme Court recently allowed an employee injured by horseplay on the job to bring a personal injury suit against co-workers.

For the first time, the court has accepted the so-called "Larson test," named for the author of a widely used treatise, Larson's Workers' Compensation Law.

The four-part test requires consideration of the following: the scope and seriousness of the conduct's deviation from employment activities, whether it was co-mingled or separate from work duties, whether horseplay is accepted in the workplace in question, and whether the nature of the job typically includes horseplay.

In the July 9 decision remanding the case to the lower court, Delaware Chief Justice Myron T. Steele said the trial judge must look at whether the co-workers' conduct involved horseplay "outside the scope of employment" under the Larson criteria. Stephen H. Grabowski Jr. v. William Mangler, No. 65, 2007 (Del.).

Duct tape incident

In the lower court case, a pipefitter and welder filed a personal injury suit against three co-workers for their actions during an October 2000 incident. According to court papers, the co-workers detained him in a bathroom and wrapped him from ankles to shoulders in duct tape.

The plaintiff's injuries required back and knee surgery and counseling, and he collected more than $300,000 in workers' compensation. Horseplay and practical jokes were common at the construction and contracting company where the men worked, and the trial judge ruled on summary judgment that workers' compensation was the plaintiffs' sole remedy. The plaintiff sought more than $74,000 for medical expenses, more than $142,000 for lost and future wages, and compensation for future medical expenses.

"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," Steele wrote. "Under these circumstances, a claimant may bring a private tort action against his co-employee(s)."

Plaintiffs' lawyer Gary Nitsche of Weik, Nitsche, Dougherty & Componovo in Wilmington, Del., said he's lost other horseplay-related injury cases in Delaware, so he was happy to convince the Supreme Court that it should use the Larson standard. "All the time we tried to argue that it was horseplay that was work related," Nitsche said.

Nancy Chrissinger Cobb, a defense lawyer on the case who practices at Wilmington-based Chrissinger & Baumberger, declined to comment on the decision because the case is still active.

Robert Pearce of Ferry, Joseph & Pearce in Wilmington, another defense lawyer on the case, could not be reached for comment.

Although most states have a variation of the Larson rule, or some sort of test that allows workers to sue fellow employees, it's extremely difficult for plaintiffs to get third-party damages from other employees, said Linda M. Doyle, a labor and employment group partner in McDermott, Will & Emery's Chicago office.

In cases in which an employee is entitled to sue, the argument that a co-worker's action is outside the scope of employment would disqualify the person from getting workers' compensation benefits.

"In the Grabowski decision, he got his workers' comp and now he has to show [his co-workers' actions] were outside the scope of employment," Doyle said. "That inconsistency would not work in all states.

The exclusivity provision of the Delaware Workers' Compensation Act generally bars other recovery when there's a workers' compensation claim, but it depends on the co-worker's conduct, Nitsche said. "We argued that the horseplay was so far-and-away over and above what anyone could consider acceptable workplace horseplay he should be permitted to bring a personal injury negligence claim," he said.