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| Hedley Lawson |
A lower court had ruled that the incident was covered by workers’ compensation; therefore no personal injury lawsuit could be actionable.
This particular injury occurred when a pipe fitter and welder was trapped in a bathroom on the job by three co-workers. The plaintiff alleged that he was cornered in the restroom and his co-workers wrapped him from ankles to shoulders in duct tape and left him in the restroom. The plaintiff’s injuries required knee and back surgery as well as counseling. The plaintiff has collected more than $300,000 in workers compensation benefits.
Consistent with most rulings related to workplace injury, the judge at the lower court level granted summary judgment based on the argument that workers compensation was the plaintiff’s exclusive remedy. The judge chose to ignore the fact that there were many examples of horseplay and practical jokes at the employer’s place of business where all the men worked.
The Delaware Supreme Court relied, for the first time, on what is often called the “Larson Test.” This test is named after the author of the widely used book on the subject “Larson’s Workers’ Compensation Law.”
This analysis requires a four-part test:
1. The scope and seriousness of the conduct deviates from normal employment activities.
2. Whether the conduct was co-mingled or separate from work duties.
3. Whether horseplay is a regular and accepted practice at the workplace in question.
4. Whether or not the nature of the job typically included horseplay.
Many plaintiffs’ attorneys have argued that it has been unfairly difficult for plaintiffs to collect third party damages from other employees due to the workers’ compensation exclusive remedy doctrine. Until this case, plaintiffs have been required to argue what the conduct was “outside the scope of employment” in order to get around the workers compensation exclusion.
In the case outlined above, the plaintiff’s attorney successfully argued that the conduct was far and above acceptable or reasonable notions of “horseplay.” In fact, several reviewers have compared this case to the type of “hazing” cases that have carried tort (i.e. injury) liability for college fraternities.
So if you’re a wholesale laboratory, retail eyecare office, or some other optical workplace, why should this case be important to you? You should be aware of this decision for two reasons. First, it shows that steps should be taken, in every workplace to avoid horseplay since it can grow out of control as it did in this case. Secondly, plaintiffs’ attorneys have consistently attacked the workers’ compensation exclusive remedy protection from the employer’s perspective. Workers’ compensation protects employers from third party liability for incidents that occur in the course and scope of employment and limits damages to those available under workers’ compensation. This case may mark the beginning of a different line of decision that could open the door for third party liability for workplace injuries. ■
Hedley Lawson, Jr. is the managing partner of Aligned Growth Partners, LLC, a strategic, operational and organizational consulting and executive search firm www.alignedgrowth.com.
