Employee Actions and Inactions in the NewsJanuary 1, 2008
Coworker Horseplay—When Does It Become Actionable?
The answer: When it becomes so great of a deviation from work activities that it can be characterized as a “deviation” that is “so unreasonable and unexpected that it is not within the co-employees’ scope of employment.” Otherwise, the general rule is that:
“Workers compensation may be an exclusive remedy… if the co-employee’s actions are within the course and scope of employment.”
These were the rules recognized by the Delaware Supreme Court in the case of Grabowski v. Manglen, decided July 9, 2007.
The facts: Grabowski, the plaintiff, worked at an oil refinery where coworker horseplay seemed to be commonplace. Grabowski suffered physical and emotional injuries when three coworkers blocked his exit from a bathroom and forced him to the floor and wrapped him from ankles to shoulders in duct tape. Following surgery for his injuries, Grabowski collected more than $300,000 from his worker’s compensation claim, and then filed a negligence-based civil action against his coworkers. He argued that the taping incident occurred beyond the scope of his employment.
The Delaware State Supreme Court laid down the factors for testing whether horseplay is inside or outside the scope of employment. The judge must look at:
1) Extent and seriousness of the deviation;
2) Completeness of the deviation (i.e., whether it was comingled with the performance of duty or involved an abandonment of duty);
3) Extent to which the practice of horseplay had become an accepted part of employment; and
4) Extent to which the nature of the employment may be expected to include some horseplay.
The court cited a worker’s compensation treatise to explain how the first two deviation factors come into play.
“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. 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 that idleness breeds mischief, so that if idleness is a fixture of the employment, its handmaiden is mischief, also.”
Clearly, the bounds of horseplay can exceed the scope of employment.