Co-workers May Be
Sued for Injuries from Horseplay
[Posted 8/03/07]
A
Delaware oil-refinery worker who received workers’
compensation payments for injuries he received while
on the job may also be able to file suit against the
co-workers who caused the injuries while engaging in
horseplay.
Even
though a worker injured while horsing around on the
job is generally precluded from receiving workers’
compensation, a Superior Court judge ruled that, in
this case, the worker was entitled to benefits
because he was a “nonparticipating victim” of
horseplay by his co-workers. The worker also argued
that since he was injured outside the scope of his
normal job duties, workers' compensation law does
not preclude him from pursuing a tort claim.
“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 the trial judge to examine the case
using criteria outlined by the “Larson test” (named
for law professor Arthur Larson, an expert on
workers’ compensation law), to determine if the
horseplay deviated substantially from the normal
course of duties and thus opened the door to a
potential tort claim. The Larson criteria include:
-
the
extent and seriousness of the behavior’s
deviation from regular work activities;
-
whether the horseplay was mixed with work duties
or was separate from them;
-
the
extent to which the horseplay was accepted in the
workplace; and
-
the
extent to which the job might be expected to
include some horseplay.
Related Links:
BusinessWeek Article
Delaware
Supreme Court Opinion
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